Editorial: Heavy-handed Proposition 60 would deputize every Californian as a condom cop

Ideally, adult film performers would use condoms when they engage in on-screen intercourse. It’s the most reliable way to keep them safe from contracting or spreading sexually transmitted diseases, including HIV.

But the adult film industry has doggedly refused to adopt this simple protective measure, even though state labor code requires workers be protected from blood-borne pathogens. Even a 2004 outbreak of HIV among porn actors didn’t change that. Instead, performer safety has hinged on regular STD and HIV testing and voluntary filming shutdowns if HIV is detected. So far it has worked well; there hasn’t been a documented on-set transmission of HIV in more than a decade. But testing isn’t foolproof, and more can and should be done to protect performers from STDs.

This, however, is where we part philosophical company with Proposition 60, a heavy-handed measure on the Nov. 8 ballot backed by the AIDS Healthcare Foundation and its president, Michael Weinstein. The proposition would, in effect, make every Californian a potential condom cop by both mandating condom use and creating a private right of action so that any resident who spots a violation in a pornographic film shot in the state could sue and collect cash from the producers and purveyors if they prevail in court.

This is an extreme approach — and demonstrably counterproductive. We know this from the experience of Measure B, passed by Los Angeles County voters in 2012 to enforce condom use through the county’s film permitting process. The multi-billion-dollar adult-film community is largely concentrated in Los Angeles. Or at least it was before Measure B.

The Times editorial board opposed Measure B because we thought it was unlikely to increase condom use but would instead drive the industry underground or out of town. And that is exactly what happened. The year Measure B passed, there were 480 permits pulled for film shoots involving “nonsimulated sex,� according to FilmLA. The following year, in 2013, just 40 were pulled. That number has been dropping each year since.

It’s not clear how much of the shooting has left the county or state, taking its sound, lighting, stage and other jobs and related economic benefits with it. But if Proposition 60 passes, it seems reasonable to expect the industry to go further underground or leave the state and become further fragmented. Perversely, this would threaten the integrity of the voluntary — and effective — twice-a-month testing protocol which is credited with keeping HIV transmissions in check.

Proposition 60 is far worse than Measure B not just because of its unusual provision allowing any Californian to sue and collect damages without having to show that they suffered any harm. It also extends the financial liability to, potentially, small-time performers who produce and distribute their own content (and who are unlikely to have been coerced into not wearing condoms). There’s also the possibility that some people might use the new law to harass adult-film performers.

There’s also a concern this liability would extend to hotels, cable television and other private companies that provide adult films to customers. The lawsuit provision is one of the reasons a number of organizations outside the porn industry, including the Los Angeles County Commission on HIV, Equality California and AIDS Project Los Angeles, have signed on to oppose this measure. It’s also telling that the California Medical Assn., which backed a state bill requiring condom use in the adult industry in 2014, decided to stay neutral on Proposition 60. Both the state Democratic and Republican parties are on record as opposed to Proposition 60 as well.

What unites them — and us — is the belief that Proposition 60 is not the right way to address the safety of this small group of workers. Not when the California Division of Occupational Health and Safety is working to develop safety standards specifically to protect adult-film performers from exposure to blood borne pathogens through bodily fluids.

The industry would like to see regulations that include condoms as one option, along with others such as testing and pre-exposure prophylaxis, a drug regimen that can significantly lower the risk of HIV transmission.

We support rules that make performers in adult films as safe as possible. That’s why we reject Proposition 60 and urge voters to do so as well.

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