(1) Customers of prostitutes and prostitutes shall ensure that condoms are used during sexual intercourse.
(2) The operator of a prostitution business shall be obliged to draw attention to the condom requirement in prostitution establishments, in other rooms regularly used for prostitution and in prostitution vehicles by means of a clearly visible notice.
(3) It shall be prohibited to offer, announce or advertise the opportunity for sexual services by distributing writings, audio or visual media, data storage media, images or representations or to announce statements of such content
1. referring to the opportunity for sexual intercourse without a condom, even if the reference is made in an indirect or linguistically concealed form,
2. in a manner which, due to the type of presentation, content or extent or the type of carrier medium and its distribution, is capable of concretely impairing legal interests of the general public requiring protection, in particular the protection of minors, or
3. with reference to the opportunity for sexual intercourse with pregnant women, even if the reference is made in an indirect or linguistically concealed form.
Public display, posting, showing or otherwise making available to the public shall be deemed equivalent to distribution.
Explanatory Memorandum to Section 32 (Condom Obligation; Prohibition of Advertising)
Regarding paragraph 1
In the interest of preventing sexually transmitted diseases and thus protecting both prostitutes and their clients as well as indirectly affected persons and the general public, paragraph 1 introduces an obligation for prostitutes and their clients to use condoms during paid sexual intercourse. Sexual intercourse includes oral and anal intercourse in addition to vaginal intercourse.
The term condom implies use on the man's body and is primarily aimed at responsible behaviour on the part of the man; male clients and male prostitutes are consequently always obliged to use a condom during sexual intercourse within the framework of the client relationship. Female prostitutes and clients are also addressees of the standard; they are obliged to ensure that a condom is used on the body of the male prostitute or client during sexual intercourse. Therefore, they are also listed as obligated parties of the condom requirement.
From the point of view of prostitutes, the provision constitutes a rule of professional practice, which is, however, justified - as is the case with the provisions of Land law already existing in two Laender - for the protection of the legal interests mentioned. The provision encourages prostitutes to insist on the use of infection-protecting sexual practices for their own protection and to resist customers' wishes to the contrary by referring to the prohibition. The regulation is thus linked to the prostitutes' own interest in protection for its implementation. Violations of the condom requirement are therefore not subject to fines for prostitutes under this law, but they are for clients. This means that there is no room for the fear expressed by some that the condom obligation is to be enforced against prostitutes by using "bogus freemen".
The use of condoms is the most effective and simplest means of reducing the risk of sexually transmitted diseases. Nevertheless, prostitutes (and their clients) should also be informed about the use of infection-protecting sexual practices, because the use of condoms during sexual intercourse alone cannot safely exclude some risks of sexually transmitted diseases. For this reason, it makes sense to facilitate access to appropriate counselling for prostitutes. This can be achieved by providing information in the context of registration and the obligatory health counselling according to Section 10, as well as by obliging the operators according to Section 24 (3) to grant access to appropriate counselling services at their prostitution sites.
Regarding paragraph 2
The obligation to post notices provided for in paragraph 2 serves to additionally ensure compliance with the condom obligation. Pursuant to Section 24(2), operators are obliged to work towards compliance with the condom obligation.
Regarding paragraph 3
Regarding No. 1
The preventive effect pursued by the condom obligation can only be achieved if the use of condoms by female and male prostitutes is established as consistently as possible. However, it is currently difficult for many prostitutes, even in the Laender where condoms are already compulsory, to insist on condom use with their clients, especially if the clients get the impression through the dissemination of open or hidden advertising that unprotected sexual intercourse is a "completely normal" and easy-to-find offer.
To safeguard the condom obligation, an explicit advertising ban is therefore introduced as an independent provision. In addition to explicit advertising for vaginal, oral and anal sexual intercourse "without a condom", the ban also extends to abbreviations typical of the scene such as "AO", "FO" or linguistic paraphrases such as "naturgeil", "tabulos".
The provision restricts the prostitutes' ability to gain competitive advantage from their willingness to engage in risky sexual behaviour, which is prohibited under paragraph 1. It reduces the pressure from the demand side to refrain from using condoms and at the same time serves to strengthen prostitutes who want to stick to condom use for their own protection.
Number 1 pursues a different goal than number 2, which primarily aims to protect young people and the general public from unsolicited confrontation with sexualised content. Although since the Prostitution Act came into force, not every form of advertising for prostitution can be considered prohibited and prosecuted as an administrative offence, it must still be possible in principle to counter aggressive and excessive forms of advertising for sexual services. This is to be ensured by the regulation in number 2.
Regarding No. 2
Number 2 includes the general prohibition of advertising an opportunity for paid sexual acts or announcing statements of such content through the media mentioned in section 120, paragraph 1, number 2 of the Code of Administrative Offences. The wording in number 2 takes into account the development of the supreme court case law on section 120, paragraph 1, number 2 of the Administrative Offences Act.
Advertising or announcements are prohibited under No. 2 in particular if they are likely to endanger the development of children and adolescents or their upbringing to become independent and socially competent personalities. According to the rulings of the 1st Civil Senate of the Federal Court of Justice of 13 July 2006 - I ZR 241/03 and I ZR 65/05 - a general prohibition of all advertising for paid sexual acts according to section 120, paragraph 1, number 2 of the Code of Administrative Offences is no longer to be adhered to due to the entry into force of the Act on the Regulation of Legal Relations of Prostitutes of 20 December 2001 on 1 January 2002 as well as the changed understanding among the population. The ban on advertising prostitution is to be limited to cases in which the advertising causes a concrete impairment of the legal interests of the general public, especially those of children and adolescents from the dangers and harassment generally associated with prostitution. The advertising must not be in the required restrained form due to its presentation, content or scope, or it must be suitable to endanger the legal interests in need of protection due to the type of advertising medium and its distribution. The suitability of the advertising
within the meaning of section 119(1) of the Administrative Offences Act to harass others, or its expression in a grossly offensive form, shall not be relevant. The amendment of the prostitution law provides an opportunity to clarify the scope of the ban on advertising prostitution, especially in the interest of protecting minors.
