Wednesday, October 12, 2016

California Proposition 60: A Flaccid Attempt to Over-Regulate Condom Usage in the Porn Industry

I know some peculiar laws have been proposed in California, whether it is a GMO label law or San Francisco's attempted ban on circumcision. However, there is a ballot referendum coming up on this November 8: Proposition 60. While the Proposition is 14 pages long, Proposition 60's primary effect would be to require condom use in California's adult film industry. Secondarily, the Proposition also requires film producers to pay for actors' STD/STI testing, as well as renew licensing with the California Division of Occupational Safety and Health (Cal/OSHA) every two years. Keep in mind that Cal/OSHA already requires condom use on set, but that it only enforces the rules when responding to complaints. Proposition 60 would require greater enforcement mechanisms. As bizarre and intrusive as it might seem, Los Angeles passed a similar law back in 2012.

Essentially, the premise behind this law would be to hold film producers accountable for the health and safety of their actors, as well as to close loopholes and help ensure the enforcement of already-existing laws. The planned effect is to reduce the spread of sexually transmitted diseases, thereby reducing taxpayer burden for healthcare costs that would have otherwise been incurred. It sounds like a common-sense initiative to protect the wellbeing of those in the adult film industry. It is not simply because both the Republican Party and the Democratic Party of California have submitted endorsements against Proposition 60 that makes me curious. It is also because the Adult Performer Advocacy Industry, which is the state's only industry association (and it happens to represent hundreds of Californian adult film workers), opposes it. Between the opposition of both political parties and of a representative amount of adult film workers, it makes me stop and wonder at least for a moment if there is something in the pages of Proposition 60 that make it more problematic.

Let's start with the findings from California's Legislative Analyst's Office (LAO). For one, LAO estimates that it would cost over a million dollars annual to regulate and license adult film studios in order to comply with these new laws. In addition to $1 million in enforcement, the LAO is estimating a high likelihood that it will deprive the State of California several millions of dollars in revenue, either because film producers would move outside of California (e.g., Nevada), film producers would evade regulators, and/or because producers would pay their actors less money. One of the bigger arguments from proponents is that Proposition 60 would reduce health care costs for the taxpayer. However, the LAO undermines that argument by concluding that any reduction in publicly funded health programs would be offset by a minor increase in health care and social services costs caused by reduced industry employment, thereby having a probable net minor effect on health care costs in California.

What LAO did not bring up in its analysis was the fiscal impact of lawsuits. Based on the wording in the Proposition, any citizen of California who does not see a condom in an adult film can sue and receive a portion of any fine imposed [6720.6(a)]. This invasion of privacy is bad enough because the law requires producers to provide their contact information [6720.1(a)(3)] and addresses at which the filming took place[6720.1(a)(1)], which could lead to stalkers and pornography naysayers to unleash their wrath on the performers. Giving the location of the filming is even creepier if the filming was done at one's home. The level of harassment would be even worse for LGBT adult film performers who are harassed by hate groups or other overzealous individuals who have an issue with LGBT individuals, which would explain why LGBT activists in California are against this Proposition. Proponents will say that adult film performers or individuals providing independent services will not be prosecuted, provided that such individuals have no financial interest in the adult film and are not adult film producers [6720(i)]. Politifact picked up on the one slight issue with that: the majority of performers are also producers. While the definition of "financial interest" is not made clear in the Proposition, this has more than a distinct possibility of opening a sizable amount of adult film performers to lawsuits.

Some other features of the bill that make the whole thing downright perturbing:
  • Voluntary regulations adopted by the industry, combined with the Cal/OSHA's already-existing regulations, are arguably adequate. For one, it's already common industry practice to be tested every couple of weeks. Second, there has not been a single case of HIV infection in the adult film industry since 2004, which is a major metric of success for the adult film industry.
  • Forcing actors to wear condoms infringes upon the right of actors to control their own bodies. This includes married couples that decide to produce pornography because if you look at the Proposition, there is no exemption for married couples. 
  • Back in the day, most production companies were big businesses. As Internet porn has become more prevalent, producers are not only more likely be smaller, home-grown operations, but as already mentioned, many performers are also producers that benefit. Particularly looking at the licensing provisions in 6720.2, this would create onerous regulations for small business, especially if the litigative aspect of the Proposition is enforced against them. 
  • This Huffington Post article brings up another good point: Normally, condoms are one of the most effective forms of STD prevention. However, when an actor is on a porn set wearing condoms for a long time, condoms become painful and unreliable. Also, the article brings up that there are occasions that performers get chlamydia and gonorrhea, which proponents use to advocate for Proposition 60. Since these performers are some of the most frequently screened people in California, it's easy to nip these more minor STDs in the bud before it is too late. 
  • Los Angeles already passed a similar law a few years back, and the number of permits issued for film production dropped over 90 percent since its enactment about four years ago. Considering that a sizable amount of the market is located in Los Angeles, the Proposition is not going to do a whole lot in terms of preventing STDs spreading. It will just create more legal headache that could, as the LAO brings up, shrink the industry or force it to move to another state.
  • Per the LAO report, one way that performers and producers can avoid regulators is to work in the black market. This would create unsafer working conditions that would undermine the very health and safety that proponents were intending. 
  • Looking at Section 10 of the Proposition, the proponent, i.e., Michael Weinstein (the main proponent of Proposition 60), is authorized to be "sworn in" as a state employee that can only be "fired" by the California legislature voting him out. If the State refuses to uphold the law, then Weinstein would automatically be hired and reimbursed with taxpayer dollars to cover his legal expenses. Essentially, California would have a Porn Czar. 
  • The Proposition states that it is not required to have "condoms, barriers, or other personal protective equipment to be visible in the final product of an adult film [6720(h)]." However, if you read the rest of the provision, it proceeds to say that "any adult film without visible condoms that is distributed for commercial purposes in the State of California by any means was produced in violation of this section." So instead of regulating the thousands of workers in the agriculture industry or the leisure and hospitality industry, we are going to be disproportionately worried about a few thousand employees in the adult film industry? Got it!
This is the issue with so many of these ballot initiatives. You have a noble goal, such as reducing the spread of STDs, but the language of the ballot is so messed up that it causes unintended consequences, especially for those the ballot was supposed to help. The result of such initiatives? More costs due to regulations, less benefits derived, and causing more harm than good to those the ballot was intended to help. There are other cost-effective and less intrusive ways to reduce the spread of STDs. For those of you living in California, please Vote No on Proposition 60 this November.

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