Analysis Sexual Health

California’s Proposition 60 Is About More Than Just Condoms in Porn

s.e. smith

Adult performers are worried about the other aspects of the act, particularly the clauses allowing California residents to file suit in the event they believe condoms weren't used in a production. The reason why is simple: The face of the porn industry is changing.

Voters in California this year are considering an astounding 18 statewide propositions, and one in particular could have a direct effect on a very small group of state residents: the estimated 1,800-2,000 adult performers—according to industry group Free Speech Coalition (FSC)—who make the professional pornography that helps to fuel America’s fantasies.

Proposition 60, “The California Safer Sex in the Adult Film Industry Act,” is asking California voters to consider whether performers should be required to wear condoms in adult films. Like its Los Angeles-only predecessor, Measure B, which passed in 2012, it’s garnering considerable controversy, including a creative protest that involved shutting down access to adult sites for California residents for a day.

The measure will require performers in California—one of the two states where it’s explicitly legal to shoot porn—to use condoms on set in situations that may facilitate the spread of sexually transmitted infections (STIs), including anal and vaginal sex, with condom-safe and appropriate lubricants as necessary. In addition, producers will be required to pay for any STI prevention, screening, and treatment costs incurred by performers. The requirements for film permits and notices would also be tougher under Prop 60, including mandated liaisons with the health department.

The measure has been pushed by Michael Weinstein, leader of the AIDS Healthcare Foundation and engineer of Measure B, and the For Adult Industry Responsibility (FAIR) Committee, which appears to be funded entirely by the AIDS Healthcare Foundation (AHF).

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But the law would not just be a “condom act.” Proposition 60 allows adult performers to bring suit against producers who break the law, and it permits any California resident to file a complaint with a state if the resident believes condoms were not used in a production. If the state declines to follow up, individuals may sue anyone with a financial interest in the production, and in the event they prevail in court, they are entitled to 25 percent of the damages. Furthermore, the measure grants the “proponent of this Act” (Michael Weinstein) a “direct and personal stake,” or standing. In the event the law is challenged and the state opts not to defend it, Weinstein would be paid by the state for handling the law’s defense in court.

So in a sense, Proposition 60 has two very different components: those regarding condom use and sexual health, and those involving legal challenges to producers. A fair evaluation of the potential law must consider them together, as they have different, though potentially compounding, effects, and supporting the use of condoms in porn does not necessarily equate to support for Proposition 60. The American Social Health Association, for example, told Rewire via email that it testified in 2015 to support mandatory condom use on adult film sets, but declined to comment on Proposition 60 specifically. Meanwhile, the California Medical Association also supports mandatory condom use, but has not expressed direct support for Proposition 60.

Speaking on behalf of the Yes on 60 campaign, John Schwada argued that this is a worker health and safety issue, claiming that after three attempts at asking the state for regulation, the organizers decided to take the fight to the ballot. He, along with other proponents of the initiative, strongly stressed concern about the potential spread of HIV among adult film star performers.

The state’s existing occupational health and safety rule regarding bloodborne pathogens includes a reference to “universal precautions” for protection from body fluids, including semen, vaginal fluid, and blood. This implies the necessity for condoms and other barrier protection, some argue. However, it is rarely enforced. Schwada said this is “non-negotiable” and condoms should be considered a gold standard for sexual health on set. He also disputed the FSC’s aforementioned estimate on the number of active performers, saying it may be closer to 6,000, with the industry “eating up and spitting out” a high volume of performers annually.

Currently, Schwada notes, the California Division of Occupational Safety and Health (Cal/OSHA), the regulatory agency responsible for monitoring worker health, can bring legal action against those who violate workplace safety requirements. Cal/OSHA, which does not comment on pending legislation or regulation, noted that it has performed 40 onsite inspections since a recorded incidence of HIV transmission on an adult film set in California 12 years ago, finding 179 health and safety violations (including but not limited to barrier protection issues). It did not give Rewire an indication of how many of these violations led to citations or any comparable statistics with other industries. The agency is also meeting on November 10 to discuss competing additional regulations introduced by the FSC and AHF, separate from Proposition 60, regarding the use of condoms on adult sets.

Under Proposition 60, workers and porn consumers could also play an enforcement role alongside Cal/OSHA, acting as whistleblowers to pressure the state into investigating claims that the condom rule is not being followed. The establishment of civil penalties and a penalty payable to the plaintiff is designed to act as an incentive: Use condoms, or pay the price.

Other public health advocates note that condoms are not the only way to prevent the spread of HIV. Dana Van Gorder of Project Inform, an HIV advocacy organization, commented that “it is important to protect the health of adult performers, and condoms should always be available for them on set. But it is 2016, and condoms are not the only proven HIV prevention method available. Adult performers should be educated about the potential for condoms, PrEP, and treatment of HIV-positive people to prevent infection and, as adults, make a choice about the best option for them.”

Van Gorder did not take an explicit position on the proposition, though he did raise questions about the potential legality of the measure as written.

Numerous other individuals and organizations have explicitly voiced opposition to the measure, including the state Republican, Democratic, and Libertarian parties; Equality California, the Courage Campaign, the Sex Workers Outreach Project USA, and the Center for Sex and Culture; several major California newspapers; and many adult performers.

Some of these opponents are concerned about the condom mandate, with performers like Siouxsie Q, who works with and without condoms, and Nina Hartley commenting to Rewire that the requirement effectively deprives them of autonomy, putting a man, and the state, in charge of decisions about their sexual health. “At the end of the day, it’s really my body and our bodies that will be affected,” said Siouxsie.

“Condoms are great! They’re a fabulous option,” she added, but said she wants access to an entire sexual health toolbox, including robust testing as already used in the film industry. (Proposition 60 purports that this testing is not sufficient and would mandate that employers pay for testing rather than require stars to cover their own medical expenses.) That’s a sentiment Van Gorder echoed, stressing that adult stars need to be informed about their sexual health options and provided with full access to them without reprisals or coercions, and with the ability to refuse scenes or activities that they feel are personally dangerous.

But performers are really worried about the other aspects of the measure, particularly the clauses allowing people to file suit in the event they believe condoms weren’t used in a production. The reason why is simple: The face of the porn industry is changing. As Hartley put it, referencing common stereotypes about who profits from porn, many members of the public visualize “pornographers” as balding men with gold chains and sweaty palms. In fact, many of the performers viewers see on screen are producer-performers: They have a financial interest in the films they appear in, and appear as contract performers, not studio employees. It’s not an abstract producer or studio collecting the proceeds, but the performers themselves, whether they’re running their own productions or participating in promotion and distribution.

A performer who posts promotional clips on her Tumblr (despite Yahoo’s best efforts) and builds up a social media audience is also acting as a producer and distributor, for example. Performers use pseudonyms to protect themselves and their families, and this measure would effectively allow anyone who files suit to collect their legal names, home addresses, and other identifying information.

Schwada insisted that these claims were spurious, asserting that “performers can’t be sued”—correct, if they’re only performers, and not producer-performers—and asking why the industry should get “special treatment” when it comes to the right to privacy.

“Get over it,” he said, in response to Rewire‘s query about safety and privacy concerns.

Siouxsie Q commented that members of the public may believe workers are hyperbolizing when they express concerns about overzealous fans, stalkers, and hate groups, but they’re not. In her advocacy work, she commented that she regularly encounters performers who have received hate and death threats.

“It’s infuriating and heartbreaking,” she said, describing the sense of not being heard while working in the industry. She, like other performers, is concerned about how the election rhetoric surrounding Proposition 60 has a stigmatizing effect by suggesting that the porn industry is a hotbed of STIs threatening public health, and infantilizing performers by making it seem as though they can’t make decisions about their own sexual health.

In 2012, actress Lorelai Lee commented that Los Angeles’ Measure B would actually make it harder for adult performers to observe safer sex practices on set, an argument that has arisen again around Proposition 60. Her colleague Jessica Drake noted, also in 2012, that porn isn’t supposed to be educational—a sentiment echoed by Hartley—but that as someone who works in sexual education as well, she uses condoms and other safer sex practices in her instructional videos, differentiating between porn and sexual education to counter the argument that porn should include condoms so viewers don’t learn dangerous habits.

The debate over Proposition 60 is hitting a number of current social flash points: rights for worker health and safety, sexual autonomy, fighting stigma, and public health. Supporters believe they’re doing the right thing for workers—but opponents, including many of the workers the Yes on 60 campaign claims to advocate for, say that Proposition 60 will endanger them, and its true purpose may be more prohibitionist and political in nature.

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