California’s Prop 60 condoms-in-porn bill failed, but the fight continues.

California’s Condoms-in-Porn Ballot Measure Failed. But the Fight Isn’t Over.

California’s Condoms-in-Porn Ballot Measure Failed. But the Fight Isn’t Over.

Outward
Expanding the LGBTQ Conversation
Jan. 5 2017 1:39 PM

California’s Prop 60 Failed, but Condoms in Porn Is Hardly a Dead Issue

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Protesters call on Larry Flynt to adopt a 100-percent condom use policy in his films during a 2004 demonstration by the AIDS Healthcare Foundation in Los Angeles.

David McNew/Getty Images

California has required condoms in porn since 1992—or maybe it never required them at all.

For years, this confusion over what state law requires has resulted in one of the world’s largest AIDS advocacy organizations, AIDS Healthcare Foundation, locking horns with the adult industry in a series of bitter legal battles. The sparring climaxed in a November ballot measure that would have written mandatory condoms into state law once and for all. That gambit failed, but the issue is far from resolved.

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California has long been America’s laboratory for condoms and porn. It’s one of only two states where courts have established a right to produce for-profit pornography (the other is the erotic state of New Hampshire); and California’s been on the cutting edge of safe sex ever since the nation’s first condom ad aired on San Francisco’s KNTV in 1975.

But whether condoms are required on porn sets and the actors that inhabit them remains a topic of confusion and debate. In 1992, officials with safety regulator Cal/OSHA established guidelines on blood-borne pathogens. On one hand, the rules are clear: Physical barriers are required for all employees who might be exposed to infectious materials. But the word condom never appears in the regulations. (One paragraph could, however, be interpreted to require that porn actors wear goggles.) With references to “laboratory coats,” “animal rooms,” and “respirators” throughout, it’s clear that the rules were either intended solely for laboratories—or for extremely niche pornography.

AHF isn’t fighting for goggles in porn, at least not right now. But the nonprofit, which serves 600,000 people in 36 countries, has pressured California for years to enforce the 1992 rules on porn sets. According to AHF, it’s a simple matter of workplace protection; that’s why they spent at least $4.5 million in 2016 to promote Prop 60, a ballot measure that would have added a specific condoms-in-porn requirement to state law.

“What we tried to do with Prop 60 was improve enforcement of the existing OSHA regulations,” said Dr. Adam Cohen, director of advocacy and policy research at AHF. He pointed to evidence that porn performers are at elevated risk for STIs—not just HIV, but gonorrhea, chlamydia, and more. “Most of our work involves people who have been harmed as a result of working in the industry.”

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But if the Cal/OSHA rules were vague, replacing them with Prop 60 was a nuclear option. “This wasn’t just about condoms—there was a big part that threatened performer privacy and safety,” said Ela Darling, a performer and the president of the Adult Performer Advocacy Committee. “We tried to initiate dialogue with AHF,” she said. “They stonewalled us. All the while claiming to speak for us, while refusing to speak to us.” Darling added: “The only way I could have any kind of dialogue with them at all was crashing their press conferences.”

Prop 60 wouldn’t have just written a more specific condom requirement; it would have allowed any Californian to file a lawsuit against anyone who financially benefited from condomless porn—including, in some cases, performers. It could also have exposed performers’ addresses through legal proceedings. And strangely, it would have granted AHF Executive Director Michael Weinstein—and nobody else—a quasi-governmental role in defending the regulation if the state attorney general declined to do so. It would also have allowed AHF—or any other organization or citizen who sued—to receive a portion of the penalties levied against porn producers.*

“Everybody felt a real threat here,” explained Darling.

“We didn’t have money for ads,” said Mike Stabile, a filmmaker and director of communications for the adult industry group the Free Speech Coalition. “That meant we had to be on every radio program. We had performers who took it upon themselves to monitor Twitter for Prop 60 mentions, and educate individual voters.” Performers tabled at farmers’ markets, went on college campus tours, attended debates, and coordinated social media campaigns. They carried an unusual message: that through overreach, a measure ostensibly intended to increase condom usage might wind up putting more people at risk.

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In the end, Prop 60 failed, 54 percent to 46 percent. This was a marked change from 2012, when AHF pushed a similar measure in Los Angeles. Back then, performers were far less visible in the campaign, and the measure passed. Another contributing factor: an outpouring of opposition from the state’s major newspapers, both sides of the political aisle, and health advocacy organizations.

However, after its defeat, AHF isn’t giving up—the organization plans to keep pushing Cal/OSHA to enforce the 1992 rules. But, energized by their recent victory, the adult industry isn’t waiting to see what happens next. In a triumphant press release, APAC announced their intention to craft new on-set regulations that would leave the industry “near-impenetrable to intimidation or persecution.”

Both sides will be sitting down together on Jan. 31, along with Cal/OSHA representatives, to hash out, once and for all, what the rules should be on porn sets.

For its part, the industry wants the freedom to self-regulate, which has historically involved frequent testing—far more than most sexually active adults receive. But their current system could certainly be better. “Most performers have to pay for testing out of pocket,” noted Dr. Cohen, adding, “condoms are indeed the best way to protect workers in the adult film industry from serious sexually transmitted infection.”

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Adult industry advocates disagree. Condoms are far from perfect; while they may be effective for casual encounters, a professional’s tissues may chafe after hours of friction, leading to greater risk of infection. “OSHA is probably sick of hearing us talk about genital abrasion or condom rash,” said Darling.

And with all the focus on condoms, the conversation has largely ignored pre-exposure prophylaxis or PrEP, an emerging HIV-prevention regimen that, in addition to daily medication, includes regular testing and counseling. When taken correctly, PrEP has been shown to be extremely effective at preventing the transmission of HIV. But AHF has been highly skeptical of the treatment, pointing out that the drug does nothing to stop other STIs.

The topic will almost certainly come up at the Jan. 31 meeting, along with measures like vaccines, testing schedules, quarantines, and—as always—latex barriers of all shapes and sizes. Though it promises to be tense, the meeting presents a unique opportunity to craft cutting-edge regulations based in the most up-to-date science, replacing vague wording that was written during some of the darkest years of the AIDS epidemic.

“Our goal is to make sure when the [adult] industry says ‘the regulations don’t apply to us,’ there is no doubt that the regulations apply to the industry and should have been applied since 1992,” said Dr. Cohen. Following their Election Day victory, porn producers remain optimistic that they can reform existing laws. “I want to find way to continue that momentum,” said Darling. “I learned that if we work really, really hard, maybe we stand a chance.”

*Correction, Jan. 6, 2017: This post originally misstated who could receive a portion of penalites from a suit under Prop 60: Any other organization or citizen who sued could receive a portion. Additionally, the post misstated Jan. 31 would be the first time AHF, adult industry representatives, and Cal/OSHA meet. An unsuccessful meeting occured in 2011.

Matt Baume is a writer, storyteller, and video-maker based in Seattle whose work focuses on LGBTQ issues, nerds, and anything that is strange and wonderful.