Bondage and sadomasochism are not the regular terrain of Berlin’s administrative court. But German lovers of consensual discipline, domination and sadism cheered this week as the Berlin court punished city officials with a flick of their legal whip.
In a closely watched ruling, the court said it was discriminatory to extend Berlin’s ongoing ban on the operation of brothels, imposed at the start of lockdown, to BDSM studios because they both offer very different services.
In a 12-page legal pummelling, judges accused Berlin authorities of being ignorant and prudish for conflating BDSM studios and massage parlours with brothels.
“The similarity . . . lies only in that the services delivered here are targeted at customers’ sexual satisfaction,” the ruling added . “However, the ways in which this happens in the various subsectors shows – particularly with regard to the typical degree of associated proximity – differences that are relevant under infection protection law.”
Issuing an injunction in favour of an unnamed dominatrix, the judges said she had convinced them that she did not offer sexual services that would be a breach of pandemic protection rules.
“From the point of view of the epidemic, which alone here is relevant, it cannot be assumed that the situation is essentially the same,” the court said. “Physical contact on the part of the [BDSM] service provider is limited to hand contact, whereby wearing protective gloves is not atypical for the sector.”
The health risk posed by reopening BDSM studios, they ruled, was no different to tattoo parlours or hairdressers – both of which have been allowed to reopen with strict hygiene rules. The court found in favour of the unnamed dominatrix and ordered the city to pay her costs.
In a parallel ruling, the judges also found that the ban on brothels discriminated against erotic massage parlours.
“From an epidemiological perspective, brothels differ considerably from erotic massage studios offering massage with hand relief, without sexual intercourse and without ‘body-to-body massage’,” the judges ruled.
In a 12-page ruling of finest German legalese, judges explained that sexual intercourse “comes with intensive body activity that leads to a considerably higher breath frequency, which can increase the virus load in the possible discharge of air and a possible intake of coronavirus through breathing”.
The ruling was not the happy ending Berlin city lawyers hoped for. Instead judges smacked their bottoms for a killjoy argument that “all sexual practices are to be seen as acts in which the same amount of aerosol particles are generated”.
Owners of the Quälgeist (Tormenting Spirit) club are already dusting off their slings for their first party on Saturday since closing in March. The club has survived on €40,000 in donations from loyal members, used to cover running costs and renovations.
“We’re starting up slowly again,” said one Quälgeist organiser, who declined to be named. “We’re looking forward to having lots of fun after the rough times of the last weeks.”
The return of BDSM and massage parlours is cold comfort for prostitutes in Berlin and elsewhere in Germany. Though legally entitled to work in their profession – paying state welfare and pension contributions – all have been banned from working since March.
This week, groups of women held demonstrations at Cologne’s gothic cathedral and Hamburg’s Reeperbahn amusement mile. Dressed in leather and latex, Hamburg protesters carried signs reading: “The state is fucking us without paying.”
“We’re fighting for survival,” said Ginger, who works as a dominatrix in the nearby Herbertstrasse. The pandemic has put an end to passing trade, she said, and pushed prostitution back underground.
Back in Berlin, BDSM studio owners are hopeful that this week’s injunctions will force a law change for all in the coming days.
Velvet Steel, a 42-year-old dominatrix, thinks Berlin’s Covid-19 restrictions against her profession were not the product of ignorance, but part of a growing trend to put all sex work in the same pot.
“Berlin likes to decorate itself with tolerance medals and gay pride parades but, at political level, there is a concerted push against BDSM studios, gay bars and the rest of the city’s variety,” she said. “This crackdown was part of a wider sell-out to make the city tidy for foreign investors and gentrifiers.”