Will California Mandate Condoms in Porn Productions?

California health and safety authorities are debating today whether performers in adult films should be legally required to wear condoms during porn shoots. California has its own OSHA department that regulates workplace safety matters, and it took up the issue after prodding from the AIDS healthcare foundation.

The AIDS healthcare foundation takes the position that this is a workplace safety issue.

Michael Weinstein, the foundation’s president, said: “The adult film industry has steadfastly refused to take any steps to protect its workers from diseases spread by blood-borne pathogens, resulting in thousands of employees becoming infected with sexually transmitted diseases.”

In frank language, the petition describes all the sex acts that adult film performers undertake in the line of duty, which the group says put them at risk of infection from sexually transmitted diseases. (source)

The adult entertainment industry opposes the measure. Adult film producers take the position that mandating condoms in California productions will diminish their creative expression, and will simply result in the porn industry leaving the state for more friendly environments like Nevada or New Hampshire.

H/T: Wolman

14 Responses to Will California Mandate Condoms in Porn Productions?

  1. Clint says:

    Consenting behavior between adults in private… This is like smoking bans all over again.

    • Marc says:

      Seriously? Having sex in front of a film crew with the intention of publishing the footage for profit qualifies as “consenting behavior between adults in private”?

      I defer to the lawyers for their opinions on whether this legitimately is a freedom of expression issue or not… But to me, it does seem like a case can be made for it being a workplace safety issue.

      That said, I don’t know if the state would try to regulate artists in other high risk areas the way they have here. Lame example (long day), but do they mandate that tightrope walkers use safety nets?

  2. In the adult entertainment industry’s defense, a voluntary self-regulation system has been in place for performers at the major production companies for many years, with very frequent checks for a wider constellation of diseases and other health issues than the typical tests at your typical doctor’s office will perform. I think as to that the public health imperatives of Cal-OSHA probably trump, although I would hope that the regulators would give at least a good-faith look at the industry’s existing practices before throwing their weight around.

    And the issue of whether a requirement of condom use during performances materially affects the content of their product, and therefore their First Amendment rights of free expression, is not a legally frivolous issue.

    That’s not to say that I think mandating condom use is a particularly bad idea. I’ve never understood why uncondomed porn is necessarily considered “hotter” than condomed porn. There’s also the issue of scenes involving oral interaction between the performers — if condoms are mandated, then will dental dams be mandated too?

  3. Charles Platt says:

    “…thousands of employees becoming infected with sexually transmitted diseases.”

    THOUSANDS?

    The same article estimates that according to “2005 estimates,” only 1,200 people were employed as porn performers. If “thousands” were infected, that would mean all of them.

    I have a natural suspicion of special-interest groups that lie about numbers in order to achieve their goal of legislation that will only affect other people.

    If the performers were employees, there might be a case for legislating interference, but as I understand it, they are independent contractors.

  4. Jim says:

    This is going to cause more HIV infections for straight porn performers. I read an article about a year ago from a porn producer in California on what would happen if the state OSHA did this which basically boiled down to they would no longer be able to find out the HIV status of the performers since its illegal to do so and in order to comply with state OSHA standards they can no longer classify the talent as free lancers. On top of this condom use in the porn industry causes small tears and abrasions making it more likely that a HIV positive performer that fell though the instant test window to infect another person.

    This despite being one of the industries where self regulation not only has been successful but widely successful with an infection rate many times less than the general public let alone compared to other high risk groups.

  5. Charles Platt says:

    On further reading, the numbers seem to originate from Los Angeles County Department of Health, which cites about 2,000 cases of chlamydia and gonorrhea afflicting porn performers _over a five-year period._ Some individuals contracted infections on multiple occasions, so, it is not accurate to say that “thousands” of employees were infected. There were thousands of cases, not thousands of people. Interesting, the way statistics are misinterpreted and then become the basis for regulation.

    “As many as” 25 people were infected with HIV, according to AIDS Healthcare Foundation; this vagueness suggests that they don’t know the real number.

  6. Jim says:

    The AIDS Healthcare Foundation is full of shit with that 25 infected number. There has only been 7 or 8 straight infections (IIRC) since the start of voluntary HIV testing the majority 5 coming from a single instant. The rest have been gay porn performers that may or may not have contracted the disease working in the industry.

  7. McKingford says:

    New Hampshire?

  8. ScottC says:

    Slightly off topic, but is publication of the resulting film the act that makes porn expression and not prostitution. If so, is anyone aware of any other type of expression that is only protected if you intend to publish it to the world. If I burn a flag (or pay someone else to) in the privacy of my home, I don’t have to film it and then distribute the film in order to avoid prosecution.

      • ScottC says:

        Thanks for the link. Although I still find it odd. Considering the scenario where a pimp films a traditional act of prostitution in order to try to get around the law, I agree that it likely wouldn’t work in a court of law. But why shouldn’t it? If this is truly an act of expression, then it shouldn’t depend on publication. I can’t think of another type of expression that does. It should collapse to a question of whether sex is an expressive act, and if so, it shouldn’t be illegal to engage in consensual activities even if money is exchanged. Actually, it just shouldn’t be illegal in any event.

  9. Mark Kernes says:

    Sadly, there seems to be no way to ascertain how many performers are infected, over the course of a year, with non-HIV STDs, since the pronouncements from the Los Angeles County Dept of Health and the primary adult testing agency, AIM, which provides the only reliable figures to the health department, conflict.

    On the other hand, we DO know how many HIV cases have been contracted while performing in adult movies since 2004: Four, all a result of one male performer having unprotected sex during a filming in South America, and bringing it back and spreading it to three female adult performers. A more recent HIV positive, in June of last year, was not contracted while acting in the industry.

    It is this HIV statistic which causes the industry to doubt the health department’s pronouncements on STDs, because they originally claimed that as many as 22 performers had contracted HIV since 2004, a statement they have since retracted though they relied on it for several weeks last year.

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