On health risks and autonomy within the porn industry

33 Comments

1. Great post! The condoms are interesting as a legal issue, but also point to a broader moral issue. How many performers there are coerced? How many are not coerced in such a way that could be construed as illegal, but still pose moral issues. It doesn’t even have to be someone in financial or drug abuse extremis. Take pressuring someone who is generally very needy and insecure and insinuating how much approval they will get for doing this. Can’t be made illegal, but seriously shady. Of course, I’m sure there are some happy, healthy, autonomous porn stars. More power and less clothes to you! But I worry that there are many more who do not fall into that category.

2. Well, how many employees of any stripe are “happy, healthy and autonomous.”?

   • Tru dat. But there are employers who take more or less advantage of employee’s weaknesses of various sorts.

     • Oh, absolutely. There are very few of us who don’t feel coerced by employers into doing things that we would otherwise not choose to do (like filing, but I digress).

       I’m of the opinion that this particular action by the LA City Council is overreach. The porn industry is, after all, in the business of producing fantasy into which people (well, men) can project themselves. So I suspect that they’re actually going to chase the porn industry into Simi Valley, or Valencia, or someplace else where it’s not subjected to those restrictions.

       Of course, I’m with you about more generalized laws that protect against exploitation more generally (and not just in the porn industry).

       BTW: you’ve been on fire for the last two weeks with great posts.

       • True, I wouldn’t show up to my job but for my evil employer’s exploitation of my need for money to support myself. If only I could get on the gov’t dole and let others support me. Why do liberals always assume folks are being exploited or coerced?

         • They don’t always assume that. They, among other people, suggest that it’s naive to assume there’s never an element of coercion.

3. ” Assuming that performers really do participate by choice, however, I think they should have the right to go without condoms, even if I think it’s a dangerous and foolish choice.”

   Should workers also have the right to sell their labor for less than minimum wage, or work in a factory without adequate fire exits? There are some working conditions so dangerous that we don’t let anyone do them, and it seems at least somewhat reasonable that unprotected sex with hundreds of strangers over the course of a career is one of those jobs.

   • This assumes that those hundreds of strangers aren’t already tested for STDs.

     IIRC, this is an industry requirement.

4. As a journalist in the adult industry, I can tell you that porn used to have an agency that helped both men and women who wanted to retire from performing in adult movies get further education or job training in order to transition out of the business. That agency was the Adult Industry Medical Healthcare Foundation, known as AIM. AIDS Healthcare Foundation, the organization that brought the mandatory condom law into existence, was instrumental in destroying AIM through a bogus medical privacy lawsuit. So far, no one has picked up the slack, though the industry trade association is working toward that goal.

   Moreover, your suspicion that “it’s naive to maintain that everyone who performs in contemporary porn is there free of coercion or desperation” is not well-founded. Adult movie performers are there voluntarily, in part because acting in adult movies pays a lot better than those with limited educations and life circumstances can ever hope to achieve in mainstream jobs they’d be qualified for (factory worker, secretary, fast-food chef), while others perform in order to earn money to complete their college educations, or because they’re single moms, or simply because they enjoy sex, are exhibitionists and/or have sexual desires or fetishes they want to work out, and chose the adult industry as the place to do it.

   • +1

     If you want to do real and permanent good, go to Russia and the Slovak Republic. That’s the hot-bed of unsafe, coerced porn.

5. I’m so frustrated with news stories that frame this as a question of whether condom use should be legally required. As I reported in Slate, condom (or equivalent protection) is already legally required in California for porn shoots.

   All CA employers must abide by the bloodborne pathogens standard, whether they’re running a dialysis clinic or a porn set. The only problem is that Cal-OSHA doesn’t have the resources to enforce these rules consistently. Companies periodically get fined when someone complains, but Cal-OSHA doesn’t have enough inspectors to keep up.

   The question is whether California needs additional laws to shift some of the enforcement burden off of Cal-OSHA onto the police and other agencies. I’m all for it.

   • Thanks for this comment, Lindsay, I didn’t know that the bloodborne pathogens standard applied.

   • So am I to read your comment as saying that the Times article is misrepresenting LA’s ordinance? (That’s not snark — I’m really asking.) If I understand what you’re saying correctly, there’s always been a condom requirement in making porn, but there were insufficient inspectors to really make the requirement stick, and so LA is taking it upon itself to do the enforcement of a requirement already in place. Do I have that right?

     • Over the past two years or so, the California Division of Occupational Safety and Health (CalOSHA) held hearings on a petition by AIDS Healthcare Foundation to amend the California Health Code to require condom use in all sexually explicit productions, so one could easily take from that fact that condoms were not then currently required by the Code. However, during more than one of those meetings, CalOSHA attorney Amy Martin stated that in fact the health code DID require condom use already, which made many wonder why hearings were being held in the first place. Take from that what you will.

6. Yes, that’s right.

   I wouldn’t say that the Times is misrepresenting the ordinance itself, though. It’s a question of framing. The BBP has been on the books and enforced sporadically in the California porn industry for years. The vast majority of news stories about the various proposed condom laws in California have neglected to mention this fact.

   The adult entertainment industry has spun this as a debate over “Should condoms be mandatory in porn?” Thereby implying that they are not already required. Of course, on a practical level, barebacking in porn might as well have been legal because enforcement was so inconsistent.

   The adult entertainment industry painted its members as lawful business owners getting screwed over by moralists and busybodies. But they were the ones flouting the law all along.

   This is an important distinction. Under existing law, porn actors were protected because they were workers. Every worker in California is entitled to be protected from bloodborne pathogens. The porn industry is no exception. Applying the BBP to a porn set is no more nannyish than applying it at a clinic or any other workplace. If you want to hire people to do a job in California, the onus is on you to figure out how to do that safely. You can’t just set up shop and then complain to Cal-OSHA that you can’t figure out how to do what you do without putting anyone at risk.

   • It’s hardly that simple. The Blood Borne Pathogen standards were enacted for hospital workers and others who dealt with blood contamination and “other potentially infectious materials” on a regular basis, and the adult industry was neither consulted nor even made aware of an alleged condom requirement until AIDS Healthcare filed its petition.

     But once that issue was raised, several questions arose. For one thing, adult performers generally consider themselves independent contractors, over whom CalOSHA has no dominion. CalOSHA claims otherwise, and that issue may have to be settled in court.

     Beyond that, there is also the First Amendment issue in play. Adult movies without condoms deliver a certain type of erotic message, which can be playful, spontaneous and liberating—and that’s what consumers want to buy. The industry tried to go all-condom back in 2004, the last time there was an on-set HIV transmission in the (straight) porn industry in California. It didn’t work; fans would not buy movies with condoms, since they apparently interfered with the fans’ sexual fantasies to see them being used, and producers quickly abandoned requiring condoms. Moreover, it should be noted that the statistics commonly cited from the Los Angeles County Department of Public Health regarding infection rates in the adult industry are flawed, since they include many positives of people other than performers who were tested. In actuality, the infection rates for STDs in porn are similar to those rates among the general population. And of course, performers are tested for STDs monthly, and those found to be infected are not allowed to work until the infections are cured.

     • The vast majority of porn performers meet the definition of employees for Cal-OSHA purposes; as do most actors in mainstream films. So, that’s a red herring.

       There’s no First Amendment right to hire an actor to run through a burning building without fire protection, even if that would make a very important statement in your film and the public would really get a kick out of it. By the same token, there’s no First Amendment right to put someone at risk to make an adult film. As an artist and an employer, it’s your responsibility to figure out how to convey what you want to show without putting people at risk. If you’re not innovative enough to figure it out, someone else will solve the problem and reap the profit.

       • Instead of thinking about why it won’t work, I instead think about what might happen if it does. Two main things come to mind.

         1) There will be an underground group of folks who decide to make their own, ahem, movies available. This underground will not have half the oversight that the previous industry had and the bad things that bubble up will bubble up more often.

         2) The “official” industry will follow the laws but, instead, will say “Well, we can’t do what we used to do/what we want to do and make it sexy… what *CAN* we do if we think outside of the box and, from there, make it sexy?” And then things will get weird. Really weird. Like, Japan weird.

         So we’ll have an unregulated (if vanilla) underground and a weird, really weird, like Japan weird, official industry twisting minds in ways that were previously only to be found if you were deliberately looking for them in the weird corners.

       • Re employee definition: Sez you. There are plenty of strip clubs operating around the country whose dancers OSHA once claimed were employees, but after several court cases, the issue remains unresolved.

         Re stunt work: While Hollywood can use special effects to simulate a person running through a burning building, or outfit a stunt person with protection and “shoot around it” as he/she does the same, the situation in porn is different, in that condoms are clearly visible during sex; there’s no way for them not to be seen. Some have suggested that they be removed digitally, and while I am investigating the cost of doing so, my impression so far is that removing only a few minutes of condom use in an adult movie (which typically has upwards of 50 minutes of hardcore sex) would cost far more than the entire cost of making the rest of the movie—completely prohibitive. And while you continue to claim that the performers are “at risk,” in fact they are regularly tested for STDs so the risks are minimal.

   • Saying that it’s not government overreach because there’s already a law is kind of like stealing a car and then saying, when the police come knocking on your door, that it’s not stealing because it’s already in your driveway. Either it’s something the government may legitimately do, or it isn’t. The status quo isn’t particularly relevant.

7. I recall writing about this issue from a very different angle a while back, predicated upon the assumption that enforcement of the condom law would actually be aimed at realizing a health and safety objective rather than as a pretext for running an undesirable business out of town. Based on that assumption, I tentatively opined that it would a constitutionally permissible regulation.

   Once we’re over that hurdle, whether the law is a good idea or not is a different question entirely.

   STD’s are dangerous diseases and some of them can kill you. Similar statements can be made for a lot of other things found on a film set. Should we have a law that requires that when making a movie depicting the use of firearms, prop guns and blanks should be used? Or should we allow consenting, knowledgeable adults to make a movie about gang warfare using actual guns and live ammunition? My instinctual response is that the risks involved with using real guns and real bullets in a situation where people are asked to use them in a simulation of combat are greater than I’m comfortable with, so I’d probably prefer the law intervening and requiring the use of blanks. By analogy, then, I ought to prefer the mandatory condom law.

   It does seem a little different, though. I’m having difficulty working out why I should prefer a mandatory blank-ammunition law on the one hand but disfavor a mandatory condom law on the other.

   • > I’m having difficulty working out why I should prefer a
     > mandatory blank-ammunition law on the one hand but
     > disfavor a mandatory condom law on the other.

     Well, as previously mentioned, you can have STD testing which would serve to give you an actual better measure of the gun being “empty” than just condoms, which are more like playing with real guns with the safeties on.

     • I’m not 100% sure, but I believe that transmission can occur prior to seroconversion.

       • I suspect this is probably correct, though I don’t have confirmatory information readily available. During the initial viral spread in the bloodstream before antibodies have been formed (thus causing seroconverstion), I believe it’s possible for there to be sufficient viral load for HIV to be transmitted. THAT being said, I am not an infectious disease specialist, and if I’m wrong I would be happy to be corrected in further comments.

     • There’s also the question of enforcement. It’s a lot easier to enforce a condom law than a testing law, which is a practical matter that shouldn’t be overlooked.

   • Is there a blank ammunition law?

     Supposing that this is a real thing, one reason is that there really aren’t any competing interests that I’m seeing. On the one side, actors don’t want to get shot. On the other side…what? Viewers can’t tell the difference, can they? Why would anyone even want to use live ammunition? I guess you can say a law would be worthwhile just to stop some yahoo from doing it for no good reason, but it seems kind of superfluous.

     On the other hand, apparently many viewers do have a preference for condomless pornography. And apparently most performers prefer greater sales to greater safety. The market has spoken, and the government shouldn’t get in the way of that.

     • I have no idea if there is a blank ammunition law or not. But I don’t think there’s a lot of room to debate that there could be one, consistent with the Constitution as it is currently interpreted.

       That nearly no one would want to work on a set with live ammunition seems irrelevant to me. The question is whether anyone would be willing to do such a thing, and extreme economic pressures can generate such consent. Nearly no one would want to work in a factory with a metal press that lacked safety guards (knowingly), but a small number of people, perhaps motivated by extreme economic necessity, do consent to work in such environments. Should we therefore allow the workplace itself to determine its own occupational safety standards, hoping the forces of the market will keep workers from crushing their own arms off? Or should we have occupational health and safety regulations requiring a guard with mesh sufficiently fine to prevent a person from accidentally leaving their own arm inside the machine while it is operating?

       Doc’s post takes the question to that level — is the condom law a good thing? My gut tells me no, and my distrust of government tells me that a law like this could all to easily be used to drive away adult businesses simply because of political distaste for them. But my rational brain isn’t coming up with a good reason to justify the non-rational preferences and as-yet unrealized fears, because we already have so much regulation of workplace environments to protect health and safety.

       • I think a relevant difference between running through a burning building and having unprotected intercourse is that people arguably desire to do the latter for its own sake, while presumably few people would choose to do the former. In fact, I understand that the way porn workers escape prosecution under anti-prostitution law is to make some kind of statement averring that they are having sex with each other just because they want to, and they’re accepting payment for allowing the filmmakers the privilege of taping it. (I am somewhat ashamed to admit I know that because I watched an episode of the Showtime series “Family Business.”) So one could argue that the condom mandate requires protection from risk they would freely choose even if they weren’t in that line of work, unlike shooting a movie with a loaded gun.

         • This seems to contradict your earlier fears about people being in the business unwillingly.

         • It certainly doesn’t have to. My friend tells me that there are movies out there where you can tell nobody likes anybody there much and it might be easy to assume that somewhere in there someone is being exploited.

           He or she also tells me that there are other movies where there is serious chemistry between the two folks and you can tell that they’re both into it… at which point it might even be obvious that the camera is extraneous to what the two folks are doing (see, for example, Tony Comstock’s work).

           There is more than just one couple (or one corporation, for that matter) producing these films.

           Or so I have been told.

         • To a certain degree it does contradict that fear, Dan. If one presumes that all of the people making those statements really mean them, then they obviate any worry about exploitation. I think it’s fair to wonder that people might make those statements under some kind of duress, but at a certain point one does have to take people at their word.

           Again, I think if the people appearing in porn really are there because they choose, and further are choosing to sustain a risk similar to what they would choose in their non-“professional” life, then I think they should be free to do so.

       • I think it’s important to acknowledge here that safety measures have a cost. Employers don’t cut corners on safety because they hate their employees and want them to die–they do it because it’s cheaper. The efficient level of safety is the point at which the marginal cost of making things a little bit safer is equal to the wage increases needed to compensate employees for the extra risk. Any expenditures on safety beyond this point are inefficient–they employee is better off with more money and more risk than less money and less risk.

         Now, there’s an argument to be made that in some cases the transaction costs of figuring this all out are high enough that it makes sense for the government to impose certain regulations because a fully-informed worker would always opt for a particular safety measure due to a high risk-to-cost-savings ratio. But this usually relies on the perfect-government-imperfect-market fallacy. Real governments often go into CYA mode and choose the regulations with the best PR value rather than those with the best cost-benefit ratio.

         All that said, “Some people choose to do X out of economic necessity” is never a legitimate argument for banning X. The question is whether the risks associated with X are efficient given the circumstances and characteristics of the parties in question.

8. Given that apparently the industry standard is not to use them, in practical terms that may mean the performers have no real choice in the matter.

   Given the extremely low barriers to entry (ha!) for pornography, this is implausible. Even if most studios didn’t allow condoms (my understanding is that most allow but do not require them), any performers who insisted on using them would be able to find someone else to produce and distribute their videos. Also, I’m told that condom use is the industry standard for gay pornography, where the risk of an outbreak would otherwise be much higher than it is with heterosexual pornography.

   And really, isn’t this like saying that performers are coerced into having real sex instead of faking it, because that’s the industry standard? They always have the option of doing what the rest of us do, i.e., get jobs that don’t involve having unprotected sex.

   The key thing to understand here, as with smoking in bars and restaurants, is that you don’t have a right to any particular job. If you’re not willing to do a job on the terms offered, you can find another one.

   By the way, how much of the push for this is coming from actual pornographic actors, as opposed to activists whose only stake is ideological?

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