This year’s election is sure to be a historic one. Either the U.S. elects its first woman president, or it elects Trump, marking an indelible change for the Republican Party (and American politics at large).
But there’s another issue hanging in the balance this election season — a rarely discussed topic that may have an even greater effect on Americans’ day-to-day lives than the presidency: condoms in pornography.
This November, California voters will be called to vote on the Safer Sex in the Adult Film Industry Act, a proposed statute with the potential to fundamentally change where and how porn is produced, and by whom. At stake are thousands of jobs, millions in tax revenue and the safety of porn performers, who say their lives and livelihoods will be put in danger if the ballot measure passes.
You wouldn’t know it by watching, but porn performers are already required to use condoms while filming in California.
Title Eight, Section 5193 of the California Code of Regulations — commonly referred to as the “bloodborne pathogen standard” — is designed to help prevent the transmission of blood-based diseases, and provides safety standards for workers who might come into contact with infectious fluids while performing their work duties.
Which is a laudable goal. But when your work duties include having a man ejaculate on your face, abiding by the regulation can be tricky.
The regulation applies to workers whose skin, eyes and mucous membranes might come into contact with “potentially infectious materials” (e.g., blood or semen) at work. Enforcing this in the porn industry would make porn look decidedly less sexy, according to Chanel Preston, president of the Adult Performer Advocacy Committee (APAC), a trade organization for porn performers such as herself.
If the industry were to abide by the regulation, condoms would have to be worn not only during anal and vaginal sex, but oral sex as well, Preston says. And facial cumshots, aka the “money shot” for many porn scenes, would either be eradicated or would require the recipient to wear goggles and a surgeon’s mask.
Many porn producers openly flout this regulation, and the California Division of Occupational Safety and Health (Cal/OSHA) hasn’t vigilantly policed it. It’s this lack of enforcement that forms the crux of the Safer Sex in the Adult Film Industry Act, on which the future of the porn industry hinges.
“This is a purely occupational safety and health issue,” says Adam Cohen, public health consultant for the nonprofit AIDS Healthcare Foundation. (AHF president Michael Weinstein is the citizen proponent of the state measure, having personally put forward the initiative.) “Porn is the only industry I know that publicly states that they’re not going to protect their workers.”
The proposed Safer Sex in the Adult Film Industry Act doesn’t change much of anything, Cohen says. All the act does is shore up “loopholes” in the California Labor Code, he says, making it easier for Cal/OSHA to enforce the pre-existing bloodborne pathogen standard and harder for the porn industry to circumvent it.
To that end, the act has several major provisions, Cohen explains:
- The act will extend the statute of limitations for not using condoms in porn to “one year after the date of the violation; or one year after the violation is discovered.” Currently, the period is six months from when the violation occurs.
- Anyone filming a porn scene will have to obtain a health permit, the conditions of which include adherence to the bloodborne pathogen standard (i.e., the permittee agrees to use condoms in the shoot).
- Expand the condoms in porn regulation such that it applies to anyone with a financial interest in the film. Currently, a major porn studio can outsource production of a porno to a production company, thus shielding themselves from Cal/OSHA regulations. Under the new act, both parties, and anyone else who stands to profit from the film’s sale, could be held accountable.
- If a private California resident reports a pathogen standard violation and the state of California decides not to pursue the claim, the individual will be able to file a civil action against the supposed violators (e.g., the porn producers and, in some cases, the performers, as well).
The porn industry’s objection to the measure primarily has to do with the last two provisions, both of which amount to a major threat to the privacy and safety of performers, in its view.
Cohen says performers will not be affected by the third provision, as they are paid employees who don’t directly benefit from the sale of films they in which they perform.
But performers say this assertion is wrong and based on Weinstein’s failure to understand the modern porn industry. As with many other industries, the internet has been both a blessing and curse to porn. The internet has made it easier for consumers to steal content and caused profit margins to shrink. But it’s also allowed porn stars to take greater control over their work, giving rise to pornstar-entrepreneurs such as Jay Taylor. The division between producer and performer is increasingly blurred, as many performers now also fund, write, direct, produce and distribute their own work.
While this has allowed porn stars to retain a greater share of profits, it makes them subject to regulation under the ballot measure. Combine that with the last provision — which would allow private citizens to bring lawsuits against performers — and suddenly porn performers are in grave physical danger, they say.
To be clear, California citizens are already able to report violations of the bloodborne pathogen standard to Cal/OSHA. Just this March, James Deen Productions — the production company of the once-beloved, now beleaguered male star James Deen — was fined $77,875 by Cal/OSHA for not using condoms during a January 12 shoot in Woodland Hills.
But there are some complaints the State of California chooses not to investigate. Under Weinstein’s ballot measure, if the state declines to act on an individual’s complaint, the “individual may step into the shoes of the state and file a lawsuit,” Cohen says. The individual effectively becomes a proxy for the state, pursuing a legal action that the state regulatory body deemed unworthy of pursuing itself.
Performers fear citizens will abuse the initiative. Citizens could file suits just to obtain performers’ real names and use that information for harassment and stalking purposes. Porn stars are already subject to enormous amounts of criticism from political conservatives and religious zealots, not to mention unwanted attention from obsessed and potentially dangerous fans. Allowing everyday Californians to bring performers to court will only exacerbate those issues, performers say.
Cohen dismissed those worries, saying performers were using the stalking argument as a “scare tactic.”
“Our initiative does not contain anything that should be of concern,” he says. “Those who are sued have the ability to seek protective orders regarding their true names, addresses, medical records and other personal information. … If the court finds that the plaintiff was not acting in good faith in pursuing the lawsuit, the court may award attorneys fees to the prevailing defendant.”
Stalking aside, the Weinstein act does provide an explicit financial incentive for those who might want to sue a porn producer. Citizens who successfully sue porn producers will receive 25 percent of the damages assessed by the court — essentially a commission for ratting on pornographers. The other 75 percent will go to the State of California.
It seems to set a strange, semi-Orwellian precedent under which citizens are deputized and incentivized to police each other.
The irony is that even if the ballot initiative passes, there likely won’t be in condoms in porn in the future, according to members of the industry. Most porn viewers don’t want to see condoms in their porn, and porn producers are accordingly reluctant to make performers wear them.
Instead, the legislation will likely cause the pornographers to flee California. The porn industry will migrate to Vegas or Miami, taking with it thousands of jobs and tens of millions in tax revenue for the State of California.
The greater irony, however, is that AHF and Weinstein see themselves as acting in the best interests of performers. STI transmission is rampant in the porn industry, Weinstein says, and the act will help put an end to it. “All workers in the adult film industry deserve to go to work and not become ill,” reads Section 2.
Yet both the Free Speech Coalition (FSC) and APAC — trade organizations for porn producers and porn performers, respectively — oppose the initiative. And both groups say Weinstein has declined repeated requests to meet with them and discuss alternative ways to prevent HIV and STI transmission on porn sets.
That dissonance was on display Tuesday as the APAC, the FSC and a collection of porn producers and performers challenged Weinstein to a public debate in the Andaz hotel in West Hollywood. FSC executive director Eric Paul Leue, APAC secretary Ela Darling and performer Venus Lux sat behind a table in a conference room in the hotel; directly to their left was an identical table with a nameplate reading “Michael Weinstein.”
The porn industry is open to government regulation, Leue and Darling say, noting that members of the industry have been in contact with Cal/OSHA about enacting industry-specific safety measures that won’t put performers at risk.
Ultimately, though, the initiative will be decided by California voters, and the FSC and APAC panel members said they’re outmatched when it comes to raising public awareness. AHF has deep pockets and a penchant for incendiary advertising campaigns, and is planning a statewide public awareness campaign that will include billboard, bus, online and television advertising, according to Cohen.
The porn trade groups have little money to spend on political advertising, but they do have tons of free media at their disposal. Porn stars have enormous social media followings, and Preston says APAC will be urging performers to tweet, post and Instagram about the ballot initiative in the coming months, using the hashtag #DontHarassCA. Last week, the porn industry began circulating a YouTube PSA denouncing the initiative.
https://www.youtube.com/watch?v=87YgpSOm3gk
The initiative has made for strange political bedfellows, as both the California Democratic and Republican Parties oppose it, according to Leue.
The porn industry's best political weapon may be its performers, several of whom delivered impassioned pleas at the press conference to oppose the initiative. Porn actress Katt Lowden cried as she spoke, saying porn was the best job she ever had and she was scared to lose it. Another emotional speech came from MILF star Julia Ann — currently the 55th most popular performer on Pornhub — who told of being harassed by racist porn consumers who hated her for performing with black men.
“There was a man in my life whose name I don’t know, whose face I’ve never seen. I don’t know where he lives,” APAC secretary Ela Darling said at the start of the proceedings. “What I do know is that he calls my mother at work to harass her, to tell her that her daughter is a pornographic lesbian whore. … I’ve had people threatened to kill my dog, rape me, to slit my throat. If those people could go through a brief legal process to gain access to my home address, I’m genuinely frightened for my life and the safety of all the performers in this industry.”
Whether Weinstein will even hear these complaints, however, is uncertain. The table and chairs set up for his use remained empty throughout the press conference.
Weinstein’s reluctance to engage the industry about the issue raises questions about his true goals, Leue says. “[Weinstein and AHF] sit in their ivory tower, and there are serious questions of intent.”
