News

Prop. 60: Condoms’ hard battle

A camera ready for lights and action. (Billion Photos, via Shutterstock)

Strange bedfellows: The Democratic, Republican, and Libertarian parties in California all oppose Proposition 60, a measure aimed at blocking unprotected sex in adult films.

But the condom requirement is only part of the opposition to the measure on Tuesday’s ballot.  They also see enforcement problems, leaving the performers vulnerable to lawsuits and privacy violations.

It’s big business: At a 2014 hearing of the Senate Labor and Industrial Relations Committee, experts said porn represented a $6 billion-a-year industry.

Condoms already are required in porn because of worker safety, but the AIDS Healthcare Foundation has pushed for years to have more regulations on the industry.

In 2012, AHF successfully convinced Los Angeles County voters to pass a measure on condom use in porn, and this year’s Proposition 60 comes after failed attempts in the Legislature to pass more regulation.

Remarkably, nobody in the Democratic-controlled houses could explain to Capitol Weekly why the bills died in separate committees.

While Proposition 60’s opposition includes adult film performer organizations, most of the nearly $500,000 opposing Proposition 60 is coming from companies that produce or distribute porn: Wicked Pictures, Cybernet Entertainment, Vivid Entertainment, Treasurer Island Media and Paper Street Media. The latter is based in Miami, Florida, and is one of the highest contributors, at $43,493.

A Sept. 15 USC Dornsife/Los Angeles Times poll showed the measure favored by 55 percent of those surveyed.

A condom is not required to be visible in every scene, but if one is not visible, any Californian can file a complaint that a condom was not used during filming.

It’s big business: At a 2014 hearing of the Senate Labor and Industrial Relations Committee, experts said porn represented a $6 billion-a-year industry, and was a significant provider of jobs in the San Fernando Valley and L.A. County.

“I think they’re taking enforcement and taking it to an absurd degree,” said Ela Darling, president of the Adult Performers Advocacy Committee. “Imagine asking any entertainment industry to teach and educate people first and entertain second.”

You would think AHF would spend that money elsewhere, Darling added.

“Instead, they are spending [nearly] $5 million on trying to regulate less than 2,000 performers,” she said.

The California Democratic Party delegates voted to oppose Proposition 60 over the summer because of the provision allowing any Californian to sue the producer of an adult film in which a performer did not use a condom during shooting. The party has spent about $29,100 worth of “No on 60” messages in its slate mailers and other voter communications.

“Whether it’s a worker in the adult film industry or in any other industry we take that [targeting workers] very seriously,” Michael Soller from the California Democratic Party said.

Proposition 60 would require an adult film producer to be licensed and provide information to the state about its filming. Instead of performers paying for testing for their sexually transmitted infections, the producers would pay for them. The measure states that a condom is not required to be visible in every scene, but if one is not visible, any Californian can file a complaint that a condom was not used during filming.

Performer Ela Darling, who celebrated her seventh “pornniversay” this year, said she has received threats to slit her throat, rape her, and even kill her dog,

If the Division of Occupational Safety and Health, or Cal/OSHA, does not take action or respond in a timely way, the Californian filing the complaint can bring civil suit against the adult film producers.

The ability for a third party to sue is not an “outlier,” John Schwada from the “Yes on 60” campaign said. The Americans with Disabilities Act, the Environmental Quality Act, and Clean Water Act have similar whistle-blower protections.

“If Prop. 60 passes, the same provisions would prevail,” Schwada said.

If you see something, you go to the authorities, he said. Then if the authorities are overworked, under-resourced or whatever, the third party can sue.

“The idea that this is going to result in bounty-hunting crusades – that’s not the case,” Schwada said. “We’re not anti-porn, just anti-unsafe porn.”

But some 75 percent of the performers in Darling’s advocacy committee are their own producers, and performers are worried they will be sued and their legal names and addresses will be released.

People have already used our names to threaten violence and harass us, Darling said.

Darling, who celebrated her seventh “pornniversay” this year, said she has received threats to slit her throat, rape her, and even kill her dog, which she posts pictures of on Instagram.

So their worry about what would happen with these suits, Darling said, is “based on experience and how people have already acted.”

But Schwada asked, “Why shouldn’t they [release names]? All other celebrities who get sued, their real names come out. Why should they get a special exemption?”

The board has rejected Cal/OSHA’s proposed changes and asked that it take more comments from stakeholders, such as the adult film industry.

AHF has also asked Cal/OSHA to add regulations specific to the adult film industry. In 2009, before trying to pass two bills in the legislature, AHF President Michael Weinstein asked the Governor-appointed Occupational Safety and Health Standards Board to add code specific to the adult film industry. Several months later, the board told Cal/OSHA to create an advisory committee to consider and recommend changes.

Cal/OSHA already regulates workplace safety in the production of porn, like it does in other industries. And since 2004, Cal/OSHA has done 40 on-site inspections and found 179 safety violations.

Of those, 49 were violations of the “bloodborne pathogen standard,” which deals with protecting employees from diseases carried in bodily fluids.

In a recent letter from the adult film industry to the board, Free Speech Coalition Executive Dir. Eric Leue wrote that condoms cannot be the only option to protect performers and considering all body fluids as infectious is intended for medical jobs.

“In intimate connections such as sexual contact and sexual practices in general this is an impossible task and has never been the focus of any public health efforts,” he wrote on May 6.

The board has rejected Cal/OSHA’s proposed changes and asked that it take more comments from stakeholders, such as the adult film industry. Cal/OSHA will hear comments at a meeting in Jan. 2017.

“This is an industry that when you boil-down all the arguments comes down to ‘we don’t want to follow the law,’” Schawada said.

The non-partisan Legislative Analyst’s Office reported Proposition 60 could cause a decrease in tax revenue, depending on how the adult film industry responds to the new regulations, and estimates state enforcement costs would rise, but new fees would cover “some or all of this cost.”

If Proposition 60 passes, Darling said she would not work in California anymore – performers’ two options would be to retire or leave the state.

“It’s such a sad precedent that we are so afraid of talking about sex to our children that we look to pornography to teach children about sex,” Darling said.


Support for Capitol Weekly is Provided by: