Voters in California will make an unprecedented decision on Tuesday about whether to deputize themselves as condom police. The ballot measure is called Proposition 60, and if it passes it will require adult performers to wear condoms in scenes with “vaginal or anal penetration by a penis.” If they don’t, adult film producers, distributors, and anyone with a financial stake in the film could be fined, or even sued by California residents.
The measure reflects years of work by Michael Weinstein, president and founder of a $1.3 billion nonprofit organization called the AIDS Healthcare Foundation. In the 1980s, Weinstein fought against attempts to quarantine AIDS patients and founded the AIDS Hospice Foundation. But recently, his fight has shifted to porn. Since 2009, Weinstein has been petitioning the state to require better safeguards against sexually transmissible infections in the adult film industry. With several hearings, but no resolution, Weinstein pushed for a Los Angeles city law called Measure B that would require adult film performers to wear condoms. LA residents voted it into law in 2012, and in 2015, Weinstein and the AIDS Health Foundation went statewide, spending nearly $5 million dollars to get Prop 60 on the ballot and in front of voters.
The law goes far beyond forcing performers to wear condoms. Prop 60 would require producers of adult films to buy a license every two years, and to notify the state and pay a fee for each shoot. Producers would also need to pay for and provide performers with regular testing, vaccines against sexually transmissible infections, and protection from exposure to bodily fluids. Ostensibly, these requirements would “protect performers in the adult film industry and minimize the spread of sexually transmitted infections resulting from the making of adult films in California,” according to the measure. But opponents argue that Prop 60 is a badly conceived piece of proposed legislation that could endanger the very people it’s intended to protect — especially considering many performers are also “producers” of their own films.
“This is one of the worst written, most vague propositions I’ve seen in my lifetime,” Alex Austin, an entertainment lawyer who represents members of the adult film industry, said at an anti-Prop 60 event last week “If it was about dry cleaners, it would be horribly written.”
Right now, the adult film industry is regulated by the same section of the California Occupational Safety and Health Act (Cal/OSHA) that protects health care workers from bloodborne infections like HIV. Written in 1992, the year that AIDS became the leading cause of death for young and middle-aged men, it requires employers to provide and make sure performers use “personal protective equipment.” For the adult film industry, that includes condoms, dental dams, gloves, and eye protection, although none of these have to be visible in the final product.
Because Cal/OSHA is a complaint-based organization, it doesn’t police every pornography company — only the ones that people complain about. Since the department began enforcing the act in 2004, it found 179 safety violations — 49 of them were for bloodborne pathogens regulation, according to a Cal/OSHA spokesperson.
Prop 60’s solution is to turn California’s porn watchers into whistleblowers by outsourcing enforcement to everyone — and giving them monetary incentives to take action against producers and performers (provided they have a “financial interest in the making or distribution of adult films”). If it passes, Prop 60 would allow anyone to complain to Cal/OSHA if they don’t see a condom. If Cal/OSHA fails to respond or decides not to pursue the complaint within 21 days of receiving it, complainants could then file a lawsuit against the film’s producers and distributors. If the person who made the complaint wins their suit, they’re entitled to a quarter of the damages, which can reach up to $1.5 million plus legal fees. But if the defendant (the producer, distributor, or performers producing their own work) wins, the complainant only pays the defendant’s legal fees if the defendant can prove the suit was “frivolous or in bad faith.” It essentially would put a bounty on condomless penetrative sex scenes, turning every porn watcher in the state of California into a condom vigilante.
“This proposition also seems to deputize every single viewer of pornography in the state of California,” said Austin. “Let’s say you’re watching amateur porn between a husband and wife, [and] they don’t use a condom,” she says. If the husband and wife had also produced it or were making money by selling the film, “You can potentially sue them,” she says.
Opponents write that this “bounty hunter” clause will create “an unprecedented lawsuit bonanza that will cost taxpayers ‘millions of dollars’ and threaten the safety of performers.” It’s a scheme Californians have seen before. In the 1980s, California’s Proposition 65 gave private citizens the power to sue companies that failed to alert people to hazardous chemicals in consumer products. It also provided a powerful financial incentive for bringing these suits: just like in Prop 60, if the person suing the company wins, they receive 25 percent of the damages. Just last year, Prop 65 plaintiffs received $27 million in settlements alone — with more than half of that going to private attorneys rather than to the state.
And that’s a relatively small number, too, says Karen Tynan, an entertainment and labor lawyer with clients in the porn industry. “Prop 65 was definitely more narrow and had fewer lawsuits because prior to suing, one had to get an expert consultation report (spend lots of money) and file that with the state,” she told The Verge in an email.
To be clear, condoms are incredibly important for curbing the spread of sexually transmissible infections, or STIs. Supporters of Prop 60 say that the industry bullies performers into not using protection, putting young adult film actors at risk for contracting a lifelong infection like HIV. But performers say they are being unfairly singled out and bullied by this legislation.
“The reality is that it’s a very unsafe industry,” Paula Tavrow, the director of the Bixby Program in Population and Reproductive Health at UCLA, told The Verge. Tavrow co-wrote the argument for Prop. 60 in the official voter’s guide. “Anytime you’re exchanging bodily fluids you’re taking a real risk, because you don’t know what you might be open to — and now the new rise of antibiotic-resistant STDs could make some of these people more vulnerable.” Plus, the measure argues, performers could then spread these infections to the general population. It describes this possibility as an “immediate public concern.”
But exactly how much more common STIs are among adult performers isn’t really known, because the studies aren’t great. One analysis compared STI rates in adult film performers in LA and a similar age group in the general population in 2008 — although it’s not clear if the same tests were used, or if both groups were tested with the same frequency. The results suggested that there were 8.5 times more diagnoses of chlamydia in performers than in the general population of 18 to 29 year olds, and 18 times more gonorrhea diagnoses that year. But adult performers are also tested every two weeks, so it’s possible they’re more likely to be diagnosed than the general public. The study also had to guess exactly how many adult performers there are in LA, which means that these rates might not be accurate.
Further confusing the issue, some scientists find high STI rates in the general population, too: in a study published in the journal Pediatrics, researchers calculated that 37.7 percent of sexually experienced teenage girls between the ages of 14 and 19 tested positive for one or more STIs.
Right now, these diseases are at an “unprecedented high in the US,” says the CDC, possibly because budget cuts to more than half of the country’s state and local health departments have reduced the availability of testing and treatment. More than 20 health departments across the US had to shutter their STD clinics between 2014 and 2015.
The porn industry’s current method of self-regulation isn’t perfect: performers pay to be voluntarily tested every two weeks for seven different STIs including HIV. Their results are entered into a shared database called the PASS system, which tells producers which actors are healthy and available to work but not what their specific results are. The CDC recently reported that despite the testing protocol, a performer who had contracted HIV off set transmitted it another performer on set, as well as a non-work-related partner. But opponents to the bill say Prop 60 will expose performers to much more danger than the current system.
Right now, more than half of Californians are in favor of enforcing condom use in porn, according to a recent poll. But performers say they didn’t ask for more regulation and that Weinstein and the AHF didn’t consult them about the measure’s conditions. The Yes on 60 campaign spokesperson Rick Taylor says the foundation and Weinstein did consult performers about the proposition, although he couldn’t say exactly how many. “I know at least a half-dozen or so. And that gives you enough of a flavor,” he says.
Weinstein was unavailable for comment. Ged Kenslea, the AIDS Healthcare Foundation director of communications, told The Verge in an email that it would be inaccurate to say that Weinstein declined, but the foundation refused to make Weinstein available for comment after several requests.
The Adult Performer Advocacy Committee opposes Prop 60, as do more than 1,000 people, including adult performers, who signed a petition requesting that Weinstein debate them about it. And in an incredibly polarized election year, opposition to Prop 60 seems to be one thing our major political parties agree about: the California Republican Party, the California Democratic Party, and the California Libertarian Party have formed an unlikely alliance against it. At least 17 editorial boards, including The Los Angeles Times and Mercury News, have also opposed the measure.
Many performers say they just want to make their own health decisions without interference from the state. “That’s a misconception, that we don’t know any better,” Adult Performer Advocacy Committee chairperson Chanel Preston told The Verge. “It’s ridiculous to assume that we’re just all running around and saying we don’t want Prop 60 because we’re just disgusting and we want STDs … We don’t want STD’s — and we’re screaming that Prop 60 won’t work.”
Preston says the bill won’t work because this measure it’s based on an outdated understanding of porn production. Many performers are also producers and distributors, profiting from selling video clips and producing videos via webcams from their own home. About three-quarters of APAC’s more than 600 members both perform and produce their own content, Preston says. All of them could be investigated by OSHA or sued if someone suspected they hadn’t used a condom in work they had produced and performed in — which could be frequent, because the measure says the condoms don’t actually have to be visible in the final product.
Some performers worry that expensive lawsuits would make it impossible to do their job and that being sued would mean their legal name and address would become part of the public record. And opponents all seems to agree that the privacy implications of Prop 60 are a huge risk to performers. “All it takes is for someone to be fixated or to have an agenda against a performer, and we are in a world in hurt,” Tynan said at last week’s anti-prop60 event. “We’re all concerned with the crushing legal expense and the dangers inherent in the privacy risks,” adult performer Jiz Lee told The Verge in an email. Preston agrees. “These are threats that we face on a regular basis, and when we talk about anti-porn groups or stalkers using this as a tool — people think this is hyperbole,” Preston told The Verge. “Applying a whistleblower clause to an industry that is so stigmatized and threatened all the time and prone to harassment all the time is irresponsible — and really scary.”
The irony of all these regulations designed to hold major porn producers and larger studios accountable is that they may actually give them more power — hurting sole proprietors or small businesses instead. That’s because the measure would require producers to register where and when a shoot will take place, and pay a fee with each registration that will start at $100. For small, independent producers, those fees could add up. And $100 is just a starting point, eventually that fee will be set by OSHA.
“This part is so confusing,” adult performer and virtual reality porn producer Ela Darling told The Verge in an email. “In many cases, we will be paying for permits to create content that won’t even earn back the permit fee.” Cammers, for example, produce their own content and can cam seven days a week. People who make a living selling their own video clips can shoot five to 10 per week, she says. That would be a huge amount of money in fees. And these days, performers aren’t making much — Preston estimates an average salary is less than $50,000 per year, which in Southern California doesn’t go a long way. “It’s going to be crippling for the people they’re claiming to protect,” Darling says.
This could drive the industry out of the state, or underground — which we saw when voters passed Measure B in LA in 2012. Afterwards, the number of permits pulled by porn companies dropped by 90 percent, and Penthouse stopped shooting there entirely, according to the Los Angeles Times. If that were to happen statewide, it could mean several million dollars in lost tax revenue for the state each year, according to a legislative analysis of the proposition. Prop 60 is also expected to cost more than $1 million each year in state (read, taxpayer) costs to enforce.
Driving the the porn industry underground would also make performers more vulnerable. For one thing, after Measure B it became harder for the LA Department of Public Health to track and control infectious diseases. “DPH indicates that this could have the opposite of the desired effect of the ballot initiative, which is to increase the health and safety of adult film workers,” a report from the Los Angeles County Chief Executive’s Office said. For another, performers on a less-than-legitimate porn shoot are also less likely to complain about unsafe working conditions, Preston adds. “If you’re shooting underground, well then performers are going to be less likely to come forward or make complaints,” she says.
Despite pushing for the measure, Prop 60 campaign spokesperson Rick Taylor says the foundation doesn’t want to go after performers. “Who’s going to be suing all the time? I know they’ve said Michael Weinstein,” Taylor said. “Michael Weinstein runs an almost billion dollar health care organization in 37 countries. Believe me, this is not the path that he plans to follow.” But Weinstein has filed more than 16 complaints with OSHA about bloodborne pathogen violations in pornography, and after all, is the one pushing to allow anyone in the state of California to join his crusade. That sounds more like vengeance than public health policy.