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Dressed for Sex? Condoms, Gloves, and Goggles, Says Cal/OSHA

Constance Penley Talks About Attempt to Put a Kink in Porn Industry

The use of condoms, goggles, and rubber gloves in adult films was on the agenda at Cal/OSHA’s Standards Board meeting on February 18 in Oakland, and UCSB Professor of Film & Media Studies Dr. Constance Penley was there to testify against the state’s proposed requirement. “I believe these regulations are akin to the draconian voter-suppression measures enacted to address the nonexistent problem of voter impersonation at polls,” said Penley, who since 1993 has taught a course on pornography as film and popular culture and as a genre and industry. She’s co-editor of The Feminist Porn Book: The Politics of Producing Pleasure, a collection of writings by feminists in the adult industry and essays by feminist porn scholars. Following oppositional testimony from nearly 100 porn-industry professionals, academic, and medical experts, the board voted down the proposal.

I spoke with her in a phone interview about the mom-and-pop nature of the industry and a November ballot measure proposing condom-only porn films. The following is an edited version of our conversation.

Why are condoms in the porn industry such a big deal for actors? Here is what the performers say: Some do work at companies where it’s a choice to use condoms or not. But that’s just it — they want it to be their choice. What they argue is that their condom usage is not like normal people’s condom usage, which might last all from two-six minutes. [Performers] are on the set all day long doing scene after scene, stopping, starting, and posing for pictures. It can be very abrasive.

We have to think of the performers like athletes. They’re very concerned about their health and their livelihood. If they’re forced to wear a condom, the women just say, “This is so abrasive and just leaves me open to all kinds of infections.” Also, the mandatory condom requirement (and mandatory all other barrier protections) is accompanied by a requirement that — and this is what Cal/OSHA wanted to impose — a requirement that would become part of the law that they be tested every three months. Of course the performers are saying, “We’re currently tested every two weeks. Why should we deviate from a proven testing scheme that has not resulted in one HIV infection on an adult set in over a decade?” If it’s not broke, why fix it?

But a more structural issue for them is if this ballot measure passes, where every streaming video, everything will be subject to this rule, the same thing will happen that happened in L.A. when they imposed Measure B, which is that film-production permit requests just dropped to like 5 percent of what they had been. It drove a lot of the industry underground and drove the industry from L.A. to Las Vegas. If it passes for the whole State of California, basically it kills the adult industry, which it’s intended to do by the way. If it has to go underground, if it has to go out of state, that takes performers away from the rigorous testing system that’s proven to be so effective. They’d have to be working underground in much less safe situations.

One of the things that was so apparent at the Cal/OSHA hearing was that this division between performers and producers is increasingly just not a distinction because especially with the Great Recession and after piracy, the adult industry had reconfigured itself. There are still large companies like Vivid, Evil Angel, and Wicked, but something that was important in the industry before is now even more pronounced.

Many people do not know what a mom-and-pop industry the adult industry is. There are so many small producers, you know, amateurs, couples, and also all of the webcamming that goes on, where a webcammer can either do the camming from her own house or be affiliated with a company that has a server and is able to handle a lot of the business details.

For example, for one couple at the hearing who work out of their own home, according to these proposed regulations, even though they’re married and monogamous and just doing it out of their own home where they’re the producers and the performers, they too would be subject to these regulations. They would have to wear condoms. Anybody anywhere — if you read the language of the proposition — it’s not just Cal/OSHA who could come after them but any private citizen who saw their webcam show and said, “They’re not using condoms,” or “They were exchanging other bodily fluids and they should’ve used dental dams.” Oral sex. Anal sex. You know, “Oh my goodness there’s some semen somewhere near the eye. They should’ve had goggles on.” These are the regulations.

So this couple stood there among more than 100 speakers, they were standing there holding hands, saying, “We simply could not do this anymore. This is an important expression of who we are. This is how we make a living. We have regular jobs, too, but if we wanna have a mortgage, if we wanna have children … ”

What I’m saying is that there are a lot of people in what’s called the industry who are small business owners, basically. But they would still be subject to any complaints, and not from a state official, any complaints from a private citizen. And Cal/OSHA must respond within 72 hours of a complaint.

Where did the original order to wear condoms in porn films and streaming come from, and who pushed for that? This is what’s really crazy. It’s being driven by the AIDS Healthcare Foundation [AHF], and not just by the AHF, but by Michael Weinstein who’s the head of it. There’s no explanation for his motives, but he has been able to tap into campaigns that we’ve seen throughout the U.S., throughout our history, like moral decency and public hygiene campaigns, like the temperance movement, for example.

Just the idea that we have to “clean things up.” And Weinstein is smart enough most of the time not to make it a moral issue, but for him it is a moral issue. There’s been much speculation about his motives for doing that.

As I was saying, it’s not the whole AHF, it is him. He has workers at the foundation who are attempting to unionize and who are protesting his allocation of so much of their hard-won, hard-raised financial support on politics, on fighting to impose this condom-only adult industry. They just think it’s kind of tragic that so much money that could’ve been spend on AIDS prevention in communities that need it instead is being spent to kill the livelihoods of one of the sexually healthiest populations on the planet.

Is there another media industry that is capable of and has the discipline to shut itself down, to quarantine itself for a month as it did in 2004? The Free Speech Coalition, the adult industry trade organization, has several times since then shut itself down, even if for just a few days, until all testing is confirmed. Anyone who originally tested positive gets re-tested and every partner on the set — also in life — that person had sex with gets tested, and anyone who had sex with that person. The Centers for Disease Control (CDC) would be ecstatic if there were other businesses that had that kind of public-health consciousness, that kind of discipline, and also the willingness to do it even if it’s going to hurt the bottom line.

What happens to a performer if they do contract an STI, what would that mean for their career? One of the things that was so interesting, and I‘d never heard so many people speaking all at once, a former Cal/OSHA Board member spoke. She was claiming that because adult workers’ lives are so short in the industry (an average of three months) that they are vulnerable and need to be protected. But person after person after person got up there to say, “I’ve been in it for two-and-a-half years,” “I’ve been in it for nine years,” “I’ve been in it for 15 years,” “I’ve been in it for 18 years” — with never an infection. And of course they all have the medical records to prove it.

So all of the former porn performers the AHF brings out for events — it’s always the same handful it turns out, if you’ll notice in their statements for the California ballot proposition — they say, “I worked in the adult industry, and I got AIDS.” Well, you know, there’s absolutely no link. And they keep it that vague. AIDS comes from outside the industry. There’s no scientific or medical rationality for any of this. It is a public hygiene and moral decency campaign against the adult industry, and they do it by saying, look, we are speaking up for the workers.

These five members of the Cal/OSHA Board, their minds were made up. They were gonna pass it. This was just pro forma. They have to listen to public testimony. So when over 100 people from all aspects of the industry (and then the experts from academia, medicine, public health, and law also spoke), it changed their minds. They could not come up with four votes to pass it, which had been in the works for six years.

Weinstein had organized a press conference immediately to follow the vote, and just like could not believe it. So he was not able to hold a press conference touting victory over, you know, these mindless, venal people from the adult industry.

That was my testimony, too: “I’ve been listening all these years, and all I’m asking you to do is listen to them.” And it happened.

One of the things I wanted to do as a longtime observer of the industry was to try to make a comparison to other such efforts to impose draconian solutions for a problem that doesn’t exit. There I used the example of voter suppression measures, which are about trying to counter the nonexistent problem of voter impersonation at the polls. But I do think an even better comparison would be the way anti-abortion activists want to pass laws requiring any reproductive health centers that provide abortions to have fully-equipped ambulatory surgical centers with doctors who have admitting privileges at local hospitals, at a cost of $1.5-3 million for each “upgrade.” … it’s just medically unnecessary, scientifically unnecessary.

What’s the difference between the proposal that just failed before Cal/OSHA and the November ballot initiative, California Safer Sex in Adult Film Industry Act? The ballot measure, which got the signatures and succeeded in getting on the ballot, it was important for Cal/OSHA. It was important for those to become the Cal/OSHA regulations because the AHF and their ballot proposition were dependent on that.

They also are counting on public lack of awareness. In 2012 an anti-trafficking measure, Proposition 35, was overwhelmingly passed by voters. I was horrified when I heard colleagues of mine had voted for it. I realized, “Oh no, I did not do my homework here. I did not tell them that this was not a vote against forced trafficking but also encompassed any kind of consensual sex work. Like the mandatory barrier protection regulations that AHF wants the city, county, and now state to impose, Prop. 35 was written with no input from the supposed “victims,” and made workers much less safe.

The anti-porn people always want to conflate porn production with trafficking to be able to say these poor people have no agency, they’re exploited and oppressed and victimized. When the anti-porn people go to trafficking conferences, the anti-trafficking people throw them out and say, look, do not hijack our very serious issue and our global effort with your fight against the adult industry where there is consent.

So that’s what everyone in the industry is afraid of … even with Cal/OSHA agreeing these rules are probably not helping the workers and are not going to keep them safe, so we need to listen a lot more and do a lot more investigation before we propose these rules that the workers say make them less safe and will destroy their livelihood.

And there are First Amendment issues here. Weinstein made a mistake when he said I want performers in adult films, I want them to be wearing condoms so that they send that message to the public, that safe sex message to the public. Well, I’m sorry, you can’t require other people to foster your speech. You can’t do all this to use this business to foster what is your issue, your speech.

Also there’s a question: What is the legal standing of the AHF here? To have standing, you must demonstrate personal harm. But who are they trying to protect? Instead “AHF says they are trying to protect their own employees who work in L.A., and might be infected by contact with adult industry workers, as well as all of the citizens of L.A., and now the state. AHF claims its standing, its personal stake, is in protecting itself and everyone from that diseased cesspool that are the performers in the adult industry.

Of course the performers are the most tested anywhere. I haven’t seen this said anywhere, but I think I will say it to you. Remember Charlie Sheen coming out with his HIV diagnosis? And, of course, he is notorious for his penchant for sleeping with porn stars, and there’s quite a bit of controversy about his not disclosing his HIV status to people. But I think of the adult industry, talk about public health, the adult industry has been the biggest barrier to his predations on the public. Precisely because they are so tested.

After L.A. County passed that ballot measure, was there an uptake in filming in S.B. or Ventura counties? I don’t know of any in S.B County. I think quite possibly. But Ventura and Simi Valley, yes. And of course, those communities have tried to pass their own condom ordinances or their own restrictions on giving out film licenses to them.

What’s next for the performers who are against forced condom use? After the celebration, after this remarkable decision, and hearing the board members speak … . They spoke about being so torn now that they had listened to all this testimony from the workers. Worried about imposing occupational health and safety measures that were going to make the workers less safe, were going to destroy their livelihoods, and also, just the kind of singling out and stigmatization.

Brad Armstrong, who is described in that awful, awful New York Times article on the Cal/OSHA hearing, he’s described as a performer. But he’s actually one of the most regarded, highly awarded directors in the industry. He showed these pictures of plumbers and Mixed Martial Arts fighters and just asked why these people are exposed to all kinds of bodily fluids — blood, feces — and they aren’t being tested. They don’t have requirements to wear all kinds of barrier protections.

What’s next is to continue the fight against anyone trying to exceptionalize and stigmatize the adult industry. A decision based on ignorance and morality rather than science and real worker safety.

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