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California Might Make Condoms, Goggles, and Dental Dams Mandatory in Porn

On Thursday, state officials will vote on whether porn studios should be forced to make actors use condoms and “other protective barriers” when coming into contract with bodily fluids.

by Tess Owen
Feb 18 2016, 11:55am

If goggles, latex gloves, and dental dams turn you on, then you're going to love the new proposals for California's thriving porn industry.

The six-year old fight to regulate porn in the industry's hub is finally coming to a head. On Thursday, state officials will meet in Oakland at 10am to discuss and vote on whether condoms and "other protective barriers" should be mandatory in "situations where it is difficult or impossible to differentiate between bodily fluids," which includes oral sex.

The new regulations were drafted by the California Department of Industrial Relations, Division of Occupational Safety and Health (Cal/OSHA), and state that porn studios should not "permit ejaculation onto the employee's eyes, non-intact skin, mouth or other mucous membranes."

The idea behind the initiative is to make porn production houses safer and healthier workplace environments for performers by insisting on safeguards against disease or infection, in turn hoping to set an example for the general public.

Condoms are themselves already required for porn production in California to protect against bloodborne pathogens like HIV, but enforcement has been lax and producers regularly get away with violations. The new regulations are meant to expand and add teeth to existing ones.

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If the Cal/OSHA Standards Board votes to approve the rules, they will take effect in July 2016. Blatant disregard of the new standards could cost a porn company up to $25,000 in fines.

Jenna Jameson, the former "Queen of Porn," believes such regulations are long overdue.

"Too many in the industry have been harmed due to lax STD testing and continued disregard of the deadliness of HIV," Jameson said. "I find it sad that the government has to step in and place such regulations. The adult industry should have made this change a very long time ago."

While Jameson's view is shared by other concerned pornographers and former performers, much of the industry vehemently disagrees. Many performers, directors, and producers of porn films have blasted the new parameters as bureaucratic overreach, as well as being condescending and unrealistic. Ahead of the hearing on Thursday, over a hundred porn actors and producers arrived in Oakland with the intention of making their opinions heard at the Health and Standards Board Meeting.

"These are regulations designed for medical settings and are unworkable on an adult film set — or even a Hollywood film set," said Diane Duke, a former Planned Parenthood executive and former CEO of the pornography trade association the Free Speech Coalition.

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The AIDS Healthcare Foundation (AHF), which originally petitioned Cal/OSHA to strengthen the state's Bloodborne Pathogens standard and "clarify required protections for workers in the adult film industry" in December 2009, has long argued that workplace protection in porn is insufficient.

Eric Leue, executive director the Free Speech Coalition, director of sexual health at the BDSM internet porn site Kink.com, and a member of the LA County Commission on HIV, counters that the porn industry, contrary to what people might think, is extremely self-regulated.

It currently relies on the PASS (Performer Availability Scheduling Services) program, a system that requires performers to be tested every two weeks for a host of sexually transmitted infections and diseases. PASS stores lab results in a private database. When a producer is looking to hire a performer for a shoot, they can search their name in a database to find out their availability for work. The system doesn't reveal any additional details about a person's condition.

The current system of optional condom use and biweekly STI screenings, Leue argues, is working. He pointed to only two on-set HIV transmissions in the last decade, both from the same shoot in a studio in Nevada, which he said did not comply with industry standards and testing protocols.

AHF says that, according to the California Department of Public Health, a porn worker who had been tested at a facility approved by the Free Speech Coalition within two weeks of performing on set in 2014 infected another performer because of a lack of condoms. A number of former performers who contracted HIV while working in porn support its regulatory push, and the organization has pointed out that testing can be selective, with requirements varying throughout the industry.

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Leue says it's problematic to promote condoms as the gold standard of safe sex. "Safe sex doesn't exist, but safer sex does," he remarked, noting that HIV and STIs aren't mitigated by condom use alone.

According to the World Health Organization, male latex condoms have an 80 percent or greater protective effect against the transmission of HIV or other STIs. For female performers during long shoots, Leue said that prolonged condom use can become very uncomfortable and cause abrasions to vaginal tissue, which in turn increases a person's chance of infection.

The Centers for Disease Control and Prevention (CDC) suggests a multi-pronged approach to combatting HIV involving a combination of regular testing, condom use, and pre-exposure prophylactics (PrEP) — drugs which are highly effective at preventing HIV infection. The CDC also notes that there is "little to no risk of getting or transmitting HIV from oral sex."

"This regulation tries to make the only sex-positive, responsible, and self-aware population in the US the scapegoat for the nation's failure to provide adequate sexual health education to the public for decades," said Leue.

Related: Is Porn in Prison a Human Right?

Mike Stabile, a spokesperson for the Free Speech Coalition, expects that the new rules would have a decentralizing effect on the industry. Performers or directors who don't want to comply with the new rules may simply seek opportunities out of state or underground.

That's concerning, he went on, because "when any industry is forced underground, whether it's sex work or farm labor, workers are subject to more violations. Workers are forced to live in the shadows and can't file complaint about pay, let alone safety."

Producers may be reluctant to leave a paper trail if they're concerned about getting fined or punished. "That means shooting off the grid," Stabile said. "Performers know that and are really worried."

Some of the proposed regulations, Stabile contends, don't even make sense. The rules mandate condoms or protection for any instance in which a performer might encounter bodily fluids. He said that in "girl-on-girl" scenes, for example, participating performers would be required to wear a dental dam and goggles whenever they would come into contact with vaginal fluids.

"You might as well put them in scuba gear," Stabile quipped. "It's bizarre."

In responding to such claims, AHF has pointed to remarks made by Dr. Jeffrey Klausner, Professor of Medicine and Public Health at the UCLA David Geffen School of Medicine.

"The proposed language does not include the word 'goggles' anywhere," he noted in a statement released last year. "Only the current standard, Section 5193, cites goggles as a type of personal protective equipment because the language covers all types of industry workers in California. If anything, proposed Section 5193.1 demonstrates Cal/OSHA's willingness to update existing regulations to specifically address safety and health in an industry as unique as adult films."

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But Julia Bernstein, a public information officer with Cal/OSHA, said that workplace standards in California mandate that an employee wear "eye or other protection only if it's reasonable to expect infectious material will make contact with a worker's eyes." She added that these regulations don't prevent producers from using post-production editing techniques to remove goggles from the final product.

Bernstein pointed out that under the Bloodborne Pathogens Standard, which isn't limited to porn film production, all California employers are mandated to "protect workers from serious diseases in including HIV, hepatitis B, and hepatitis C, which can be transmitted through exposure to blood and other potentially infectious materials." The revised regulations are intended to make explicitly clear how the porn industry is not exempt from these regulations, she said.

Stabile finds the whole thing to be incredibly patronizing and discriminatory towards people in the industry.

"Sex is treated differently than other forms of work," he said. "Legislation like this is so often rooted in the idea that we have to save these people, that they don't know what they're doing, that they're damaged or not in control."

AHF says that the point is to not treat sex work differently.

"According to existing Cal/OSHA decisions, adult film producers are officially employers and adult film workers are officially employees," it has said. "As employers, adult film producers are expected to comply with existing workplace health and safety regulations to protect their employees just like any other industry in California."

Related: Mandating Condom Use in Porn Is Wrongheaded and Stupid

Jessica Drake is a contracted performer and director with the production company Wicked, and says she uses condoms for vaginal and anal intercourse, but not for oral sex. She plans to testify against the proposed legislation in Oakland on Thursday, however.

"As a woman, as a feminist, as a human being, I resent the implications that the government can mandate such an intimate decision," Drake said.

The suggestion that regular condom use in porn films would encourage viewers, especially younger viewers, to use protection has also incited detractors. A 2014 study concluded that gay and bisexual men were more likely to have unprotected sex based on how much porn they consumed on a regular basis. Porn has often served as a scapegoat for the general public's proclivities, with some activists closely associating patterns of disrespect for women with the availability of hardcore porn.

But performers in the industry say that porn is by definition a fantasy, and that Hollywood films, video games, and music aren't held up to the same expectations of leading by example.

"The argument is absolutely fucking ridiculous," said Cindy Gallop, founder of MakeLoveNotPorn, a website that claims to be "pro-sex, pro-porn, pro-knowing the difference" to draw the line between fantasy and reality.

"It is not the porn industry's responsibility to educate anyone about anything," she added. "But because we cannot be open and healthy about sex in the real world… the porn industry becomes default sex education."

Related: Protesters Fight Against Harsh UK Porn Laws With A Massive "Face-Sitting"

Over the last four years, Jessica Drake has worked as a sexual health educator, and says she created a line of education films designed to help people have better sex.

"In those movies I absolutely integrate using condoms and show my performers reaching for them," Drake said, "because I'm creating a product that's educational, not a fantasy product."

"People performing should be able to make an educated decision about their own health and safety, that onus is not on the industry," she went on. "We did not sign up to be educators."

If Cal/OSHA moves ahead with the new rules, Leue says it will be vigorously challenged.

"We will sue on human rights, anti-discrimination rights, privacy rights," he vowed, remarking that the proposals "treat performers like a sub-population that doesn't deserve the right to a choice or to control what happens to their bodies."

"We are the ones who know how sex works," he declared.

Follow Tess Owen on Twitter: @misstessowen

Photo via Flickr

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