LOS ANGELES—California’s proposition 60 has been the center of a fierce controversy in the weeks leading up to the election.
According to the official voter guide put out by the California Secretary of State if passed prop 60 “Requires adult ﬁlm performers to use condoms during ﬁlming of sexual intercourse. Requires producers to pay for performer vaccinations, testing, and medical examinations. Requires producers to post condom requirement at ﬁlm sites.”
Financial support for Prop 60 is coming primarily from the Aids Healthcare Foundation, currently run by its founder Mickey Weinstein. The organization has contributed over $5 million to the initiative according to the California Fair Political Practices Commission.
Weinstein would play a fairly significant role in enforcing the initiative if it were to pass according to a Sept. 12 editorial against prop 60 published by the Fresno Bee.
“Proposition 60 raises red flags with another provision. In its fine print is language AHF says it needs if the initiative wins and is challenged but the state fails to uphold the voters’ will and defend it in court. In such a case, Weinstein would be sworn in as a state employee with standing to defend the initiative himself, and he couldn’t be fired without a majority vote of both legislative houses. Oh, and the taxpayers would be on the hook for his legal expenses,” the editorial said.
Funding for the opposition has come primarily from the Free Speech Coalition which has a variety of backers including adult production companies like Wicked Pictures. Their spending ranges into the hundreds of thousands.
Rick Taylor, who serves as lead strategist for Yes on Prop 60, says the measure is entirely about workplace safety.
“As Californians we ought to protect every worker who goes to work every day, tries to make an honest living, every worker in California deserves the same workplace protections as their fellow workers,” Taylor said. “This is all about workplace safety.”
Taylor sighted the danger of adult performers contracting sexually transmitted diseases as a main reason why voters should support the initiative.
“If a condom will prevent anyone from getting HIV then we should wear condoms in my opinion,” he said.
Taylor cites what he thinks is a 400 percent greater risk than the general population of contracting an STD if someone is an adult performer.
“The reality is every single actor and actress you’ve talked to, I guarantee you have had multiple STDs,” Taylor said. “That means they’ve had to be pulled off set, they’ve had to get treatment, they’ve had to wait to wait to get back on, and once they get back on they probably in a very short period of time catch another STD, so this is about a public health issue. Not just the issue of HIV.”
Adult performer and author Siouxsie Q James, who serves as Director of Policy and Industry Relations for the Free Speech Coalition, felt that such claims are not representative of the industry.
“I for one have been in the industry for over 7 years and have never contracted a single STI. It is truly disheartening that the proponents continuously claim to speak for us, but never with us,” she said in an email. “We test for HIV/STIs 26 times per year. Only 50% of the general public has ever had a single test in their life (according to the CDC). I find this stigmatizing and shaming language very troublesome, dangerous, and hurtful.”
The CDC does indeed report that over half of people have never been tested for HIV. While there have been some notable instances of HIV transmission in the adult film industry in the last 20 years, a Nov. 2 article in The Mercury News reported that the transmission of HIV on adult film sets is exceedingly uncommon.
Taylor’s claims about the prevalence of STDs in performers is inflated when compared to the available medical evidence. However, there is evidence to suggest one has a higher chance of getting an STD in the adult film industry than in the general population. A study published in the journal “Sexually Transmitted Diseases” in 2011 shows that annual rates of chlamydia and gonorrhea are 14.3 and 5.1 percent for adult film performers respectively with 26.1 percent getting re-infected within one year. It also showed that women are 27 percent more likely to get re-infected and that these rates of infection are higher among adult film performers than the general population of Los Angeles County, including younger people who are more sexually active.
A 2012 study published in the aforementioned journal showed that of 168 performers tested in a several month period 47 tested positive for gonorrhea or chlamydia and that 23 percent of performers who tested positive for gonorrhea would not have had their diseases detected by urogenital testing alone, and
The Free Speech Coalition claims that the industry is safe and calls into question data the AIDS Healthcare Foundation often cites.
“AHF has continually used bad data (and, more recently in 2014, unpublished and un-peer reviewed data), to stigmatize the performer community as a public health threat. The facts on this never bare out. In fact, their data isn’t backed up from similar data at public health departments or the CDC,” said Mike Stabile, the Free Speech Coalition’s communications director in an email. “The issues have differed from study to study, but there are certain major issues that plague the methodology”
He did not specifically cite the aforementioned studies from “Sexually Transmitted Diseases”, but he enumerated his issues with some studies in general including that they don’t compare populations fairly, include performers who have not shot in weeks, don’t control for off set sexual behavior, and skew the numbers higher using STI treatment centers and not more neutral testing sites. It should be noted that at least one of the studies in “Sexually Transmitted Diseases” did do a comparison to younger people.
The American Sexual Health Association, which supports the initiative, claims on its website that STDs are common amongst the public in general. They claim that over half of all people get an STD in their lifetime. They also claim that one in four teens will get an STD every year, and that half of sexually active people will contract an STD by the time they reach age 25. They cite various studies and books to make these claims.
Ela Darling, who serves as president of the Adult Performers Advocacy Committee, doesn’t think sexually transmitted diseases are that big a problem for the industry.
“STDs just aren’t the big issue that outsiders think it is within the industry. If someone tests positive for most of these STIs, we catch it within the first two weeks and treat it immediately, so the impact is low,” she said in an email. “And like I said, even if you think this aspect of Prop 60 is good, you can’t ignore the very harmful aspects of the law and the danger it poses to us.”
AIDS awareness groups such as Beyond Aids, sexual health groups like the American Sexual Health Association, and medical organizations like the California Academy of Preventive Medicine and California State Association of Occupational Health Nurses have joined in the support of the initiative. The American Sexual Health Association’s director of communications Fred Wyand forwarded Canyon News two statements affirming the organizations support for condoms in adult films.
“Increased regulation of the adult film industry has broad public health benefits that cannot be overstated,” the march 2010 statement said. “Protecting workers from STIs also reduces harm to their families and limits spread to others in the community. Mandatory use of condoms, routine HIV and STI testing, and hepatitis and HPV vaccination would greatly enhance the health and safety of those who work in the industry.”
On the other side of the equation medical organizations like St. James Infirmary and the San Francisco Medical Society have come out against the measure as have AIDS advocacy organizations like the San Francisco AIDS Foundation and The Wall Las Memorias. ALPA Health is another such group. Phil Curtis, the organization’s director of government affairs, said that they are concerned about protecting adult performers health but were still skeptical about prop 60.
“We have felt from the start that this proposition is the wrong way to go,” Curtis said.
Curtis pointed out the drop in permits for new films that resulted when Los Angeles voters passed Measure B in 2012 as evidence that the industry could simply be pushed from the state.
“What we would like to see is representatives from the adult film industry, from performers, from public health agencies, from Cal/OSHA, get together and hammer out voluntary regulations that better protect performers in the adult film industry and not drive the industry either underground or out of state,” Curtis said.
James also stated her concern that the industry could be driven from California.
“I do think that the industry would be really uprooted dismantled. Not only from an industry perspective, but from a community perspective,” she said.
She claims that the industry would have plenty of places to go if it left California.
“The industry already shoots in Nevada and Florida very regularly,” she said. “You can make adult films anywhere. That is your First Amendment right. We all know that to be true.”
Darling also thinks the industry could find a home outside of California.
“There is already a growing adult film industry in Las Vegas, where most would go,” she said in an email.
James believes that the adult industry is important to marginalized communities.
“I think that one of the realities of the adult industry is that it is something that marginalized people have done to survive for decades,” she said.
She went on to claim that the industry allowed people in marginalized communities a space where they could work free from fear, and that some are growing concerned about this space possibly being driven from California communities. Indeed, groups representing the LGBT community including the Los Angeles LGBT Center, Transgender Law Center, and Equality California have come out against the initiative.
Taylor stated that he is unconcerned with the industry leaving California.
“Let them leave,” Taylor said. “If they want to break the law in your city, if you knew you were inviting a business into your city that was violating a law that your state has, that by the way this is a federal law, this isn’t just a state law, so there is really no place for them to go that they can legally make pornography.”
Taylor claims that the only states where it is legal to make adult films are California and New Hampshire. James disputes this assertion.
“The production of adult films is legal in all states. California and New Hampshire have legal precedents that specifically identify constitutional protection of the industry. It is not illegal in any state, and the 1st amendment of the US constitution obviously applies in all 50 states,” she said in an email.
Darling also challenged the claim.
“There is this misunderstood assumption that porn isn’t legal in other states, but that’s not actually true. It just happens that CA and New Hampshire both have laws on the books that specifically allow porn, but it’s not a matter of other states outright banning production,” she said in an email.
James also disputed the idea that there is a federal law regarding condom use.
“The ‘federal mandate’ of condoms argument leans on an interpretation of a regulation that was created for the healthcare industry in 1992,” she said in an email. “The sexual health and prevention options toolbox has evolved tremendously in the last 24 years, which is why we are working with Cal/OSHA to build up to date industry specific regulations.”
Taylor pointed to the fact that Cal/OSHA already requires condom use on adult film sets and Julie Bernstein from Cal/OSHA Public Relations confirmed to Canyon News that condom use on adult film sets is mandated by the state. An Oct. 28 Rolling Stone article claimed that inspections enforcing this are uncommon.
“However, this blood-borne pathogens law is rarely enforced. According to a spokesperson for Cal/OSHA, since 2004 there have been only 40 onsite inspections, with 49 citations for not using condoms,” the article said.
James claimed that there is room for interpretation on this point.
“When they say condoms are already on the law, what they really mean is there is a regulation that is in place currently that is kind of a cut and paste job from back in the nineties for emergency medical situations, a lot of language around blood borne pathogens” she said. “Essentially cut and paste from any work place setting where blood born pathogens, blood, ejaculates. Well a medical emergency is very different from an adult film set as you can imagine.”
Perhaps one of the biggest concerns from those in the adult film industry is the proposition’s lawsuit provision. Darling claims this would lead to negative outcomes for those involved in the industry.
“It hardly matters except to incentivize harassment of a self-regulated industry. People who sue us would be awarded 25% of any fees levied against us, creating a cottage industry of harassment,” she said in an email.
Fact Checking site PolitiFact recently rated a no on prop 60 commercial’s claim that adult film performers could be open to law suits as half true. The fact check stated that performers would have to have a financial stake in the production and let a complaint process run its course to be liable. They explained in their Sept. 2 fact check how the lawsuit provision of the proposition would work.
“It allows those who witness violations of the proposed law — including performers, prosecutors or anyone who is a California resident — to file a complaint with the California Division of Occupational Safety and Health. If the agency declines to pursue the case within 21 days, the witness could then file a civil lawsuit against anyone with a financial interest in the film, which could include some performers,” the fact check said.
James claims that it is indeed very common for performers to have a financial stake in their films. She has produced things herself, but claims that is not all that is required to have a financial stake in a production.
“Even scenes I shoot for big companies I have a financial stake because of the way they’re marketed,” James said. “I use affiliate marketing, so when I tweet a link to a scene I’ve been in I get paid for that.”
Darling backed James on this point.
“The proponents of this law lack understanding of how our industry works, so when they included language that claims to exclude performers, they failed to truly protect us because they underestimated the breadth of work that is involved with being a performer,” Darling said in an email. “The days where we could make a rich living simply performing for other companies are gone. Now we all make money off the work we do in a multitude of ways and we create content of our own that would make us liable under this law.”
James claims that webcamming is a common way for performers in the industry to make extra money, and that this would be actionable under the new law. PolitiFact’s fact check does give credence to what James is saying.
“Some adult film workers, and perhaps a growing share, could face lawsuits if they have a financial interest in the content they work on. But Prop 60 does not specify what constitutes a financial interest. Ultimately, it may be up to the courts to decide,” the fact check said.
Taylor claims following the law would protect performers from lawsuits.
“All they have to do is obey the law. Pretty simple. I don’t know why they’re worried about lawsuits. If they obey the law they don’t have to worry about anyone suing them or going after them,” he said.
Darling stated that she was concerned about performers privacy being violated by possible lawsuits.
“In the litigation process, our legal names and home addresses would be disclosed which would make it so the people who stalk us, threaten us, and harass us would be able to access our private information,” she said in an email. “This is absolutely terrifying. We are a marginalized population that experiences an elevated level of abuse from people who hate the work we do or who feel entitled to our personal lives. This would put us at risk of greater harassment and violence if it passes.”
Another point of contention among the proposition’s opponents is what they say is the failure to consult performers by the drafters of prop 60.
“Even if you think that condoms are a good choice for the porn industry, you have to understand that you can’t vote for 20% of a law. It’s all or nothing,” Darling said in an email. “There are large parts of this law that are just bad. It was written by an organization that doesn’t understand the porn industry and shows no interest in learning. They refuse to speak to performers, denying us the opportunity to meet with them as an industry to voice our real concerns.”
James was even more blunt about her feelings on the consultation sought of performers by the drafters of the proposition.
“Not even not consulted, but actively shut out,” she said.
She claims that they attempted to contact one of the yes campaign’s leading proponents, Mickey Weinstein, but there was no response. The Hollywood Reporter reported on Oct. 17 that hundreds of adult film performers held a demonstration outside of Weinstein’s office in Hollywood.
“250 adult performers took to the streets, went to his doorstep on October seventeenth, and said please talk with us,” James said. “He was, you know, shuttled off to the red keep. You know never came down from the tower.”
Taylor claims that workers were consulted.
“I’m not sure which individual, but we worked with not only individuals who were present and former, we also have the support of the woman who founded the union, so she’s in support of this initiative,” he said. “We worked with both women and men who are in and out of the industry.”
HIV positive former adult performer Derrick Burts and Founder of the International Entertainment Adult Union Amanda Gullesserian have signed on to pro prop 60 arguments in the official voter guide. James contends that it has been years since Burts and Gullesserian have worked in the industry.
“There are over 1800 performers who presently work in the industry and the vast majority of them are actively campaigning against Prop 60,” James said in an email.
In August judge Timothy M Frawley of the Superior Court of California, County of Sacramento ordered that parts of the official voter guide be changed. He ordered the removal of the claim that the International Entertainment Adult Union supported Prop 60 and is the only union that is certified to represent adult film workers. Gullesserian’s personal endorsement of the rebuttal to arguments against Prop 60 was allowed to remain.
“People are really scared truthfully. It’s a crazy piece of legislation. You know you wouldn’t see that for any other industry, the ability for people to directly access your private information and punish you,” James said. “I mean I was in a debate the other day with a spokesperson form yes on 60 and he specifically said we need to be punishing people if you don’t behave in a certain manner.”
The debate that James is referencing is one that took place between her and Burts that was moderated by Pepperdine School of Public Policy dean Pete Peterson. In it Burts made clear his views on the lawsuit provision of the initiative.
“In regards to the lawsuit portion I get that you guys may not like that, but you know what people wouldn’t be filing lawsuits if you guys would just follow the law,” he said. “If you don’t follow the law there needs to be some form of consequence. It shouldn’t be fair that you guys continuously get away with breaking the law. There needs to be some form of punishment, and because of the existing loopholes they’ve been able to get around that.”
Most major California newspaper editorial boards, including the Los Angeles Times, San Francisco Chronicle, and Orange County Register have come out against the proposition. The Ventura County Star noted in a Sep. 29 editorial that it was opposed to the measure.
“A proposal that could create a healthier workplace and reduce the sexual objectification of women by forcing the industry out of our state seems like a good idea. But Prop. 60 also would allow private citizens to file civil suits to enforce the law and reap a portion of any fines levied. That kind of vigilantism is a bad idea,” the editorial said. “We already have a law — although it is not adequately enforced — to meet the health issues addressed here. This proposal is overly broad and creates bad law under the guise of doing good. We recommend a no vote on Proposition 60,”
The Bakersfield Californian is an exception to this rule. They wrote a piece supporting the measure on Sep. 12.
“Proposition 60 clarifies the laws requiring adult or pornographic film actors must wear condoms or other safety devices. It is no different than requiring oilfield workers to wear hard hats, healthcare workers to wear latex gloves, or machinery operators to wear goggles. It’s workplace safety. Get over it,” the editorial said. “Vote YES on Proposition 60.”
A CALSPEAKS poll taken between Oct. 7-13 shows 50 percent of respondents supporting the initiative, 31 percent opposed, and 19 percent still undecided. The poll has a 7 point margin of error.
Election day is Tuesday, Nov. 8.