Condom County: Porn, Condoms and Liberty in Los Angeles

On November 6th, while most of the world focused on the United States’ presidential election, the citizens of Los Angeles County confronted a slightly more explicit question at the voting booth: should porn performers be required to wear condoms while filming? Nearly fifty-six percent of LA county voters said yes.

Measure B, also known as the Safer Sex in the Adult Film Industry Act amongst proponents, requires porn producers to purchase health permits from the county so that random inspections can be carried out to ensure that performers are wearing condoms. The primary backer of the measure, the AIDS Healthcare Foundation, argues that the measure is important for protecting “both performer and public health” from the spread of HIV, particularly in protecting performers from “workplace hazards.”[1]

Considering that Vivid Entertainment, one of the biggest porn studios, experienced a 30 percent drop in sales during a two-year period in which it filmed with condoms, the adult film industry is unsurprisingly Measure B’s greatest opponent. Citing the measure as a lamentable example of ‘big government,’ the industry campaigned on the platform ‘No on Government Waste.’ They claimed that the measure would be expensive to enforce and is unnecessary, since the industry already has in place effective STI testing procedures that prevent the spread of HIV. Their final argument, particularly salient in an era of high unemployment and slow economic growth, was that the porn industry would flee LA county in the event of the measure’s passage, taking with it 10,000 jobs and $1 billion in economic activity annually.[2]

While Measure B raises a number of important questions, such as why opponents of the measure focused on government waste rather than choice and freedom of expression in their campaign against enforced condom usage and whether it was appropriate/constitutional/ethical to decide this issue by public referendum, I aim in this post to address the more fundamental question of whether it is morally permissible for the government to require porn performers to wear condoms on set.

Most people agree that the state must provide a strong reason for interfering in the choices of individuals when these choices do not result in harm to third parties. Therefore, it must be shown either that porn performers’ choices not to wear condoms actually do harm third parties or that this is a special case in which paternalistically mandating condom usage is morally acceptable. In what follows, I lay out two arguments put forth by proponents of Measure B that the choice not to wear condoms harms third parties. Finding both of these unconvincing, I turn to proponents’ argument that interfering solely on paternalistic grounds for the well-being of performers themselves is morally acceptable. While this line of reasoning raises interesting arguments concerning the nature of choice in the workplace, I ultimately find it unsuccessful in providing a moral basis for government intervention in porn performers’ choice of whether or not to wear condoms.

Harm to Third Parties Argument 1: Porn performers, who must be at a higher risk for HIV due to frequency of sex, number of sexual partners, and failure to wear condoms, are likely to transmit HIV to members of the general population, fueling a public health crisis.

This argument seems to rest on the empirical claim that porn performers are more likely than the average citizen to contract and pass HIV on to others and are thus a greater “cause” of the HIV public health crisis. Otherwise, this type of public health argument would suggest that we enforce condom use upon all citizens. Setting aside questions about whether harm to “public health” can reasonably be considered a third party harm, this argument appears to fall apart in light of the empirical data.

Before any filming commences on a porn set, an industry database is used to confirm that all performers have tested negative for HIV, syphilis, chlamydia, and gonorrhea in the past 14-28 days. Such frequent testing appears to work surprisingly well: there have been no cases of HIV transmission on a porn set in the past eight years. Indeed, according to the California Department of Public Health, while there were 6,447 new cases of HIV reported between 2008 and 2011, only two were porn performers and both contracted the disease off-set.[3] Furthermore, the industry has detailed plans in place in the event of a positive test result: studios across the country are notified and required to cease filming, sometimes for months at a time, until potentially infected actors are tested.[4]

Based on the data, HIV prevention actually appears more effective and even laudable in the population of porn performers when compared to the general public. Thus the claim that they present a greater threat of harm to “public health” than other citizens does not stand up, and this argument cannot justify state interference.

Harm to Third Parties Argument 2: Teenagers watch porn performers engaging in sex without condoms and conclude that “hot sex is sex without a condom.” Due to this “bad influence,” they do not use condoms and are at a higher risk for contracting HIV and other STIs.

Teenagers’ sexual choices may indeed be unduly influenced by porn performers, perhaps due to the psychological effects of modeling suggested by social learning theory and/or incomplete brain development. But the argument that we should therefore infringe upon the liberty of the performers seems to get things the wrong way around. Assuming a general respect for individual liberty when choice is based upon rational, autonomous, and critical thought, it seems confused to interfere with the decision-making process of consenting, adult performers when what is really “causing” the identified harm is the underdeveloped decision-making capacities of teenage viewers.

On this view, state intervention should focus on the choices of teenagers, not those of porn performers, since it is when choice is not truly autonomous (be it an extreme case of coercion or the far more mild case of undue influence illustrated here) that we think it morally permissible to intervene in individual choice. Based on this conclusion, it would be morally acceptable for the state both to construct more robust measures to prevent minors from accessing porn and to attempt to “check” the psychological influences of modeling with comprehensive sexual health education and carefully crafted public health messages.

Yet it is not morally permissible for the state to attempt to take a “short cut” by restricting performers’ choices. Although it would be easier for the state to achieve many desirable ends, such as crime reduction, if we didn’t have such strong protections on liberties, such as those to prevent unreasonable search and seizure, we think, rightly, that protecting these liberties is worth some additional cost and inconvenience to the state in reaching that end. The case of performers choosing whether to wear condoms is no different; even if it would be easier to increase condom use amongst teenagers by banning performers from filming without condoms, the presumption in favour of liberty suggests that the state must accept the somewhat more onerous means to achieving its ends.

Paternalistic Argument: Porn performers aren’t freely choosing to have condom-less sex; they are forced to do so or lose their jobs. Thus, we ought to regulate their workplace in order to protect the health and safety of the performers. We make construction workers wear hardhats for their own protection – how is this any different?

This argument seems to be two-fold. I’ll start by addressing the first claim, that porn performers are, in a morally significant sense, “forced” to have unprotected sex, since they may be fired if they refuse. We generally find it morally permissible and even desirable for the state to intervene if an individual is being forced to do something that endangers her health or well-being. It seems to be an accurate formulation that a person is forced to do something when she has no reasonable or acceptable alternatives.[5] But the notion that porn performers in Los Angeles County have no reasonable or acceptable alternatives seems patently false. Even if there were no producers willing to film with condoms, of which there are an albeit limited number, there are a range of unskilled jobs (assuming the worst case scenario in which a porn performer has literally no other talents or education) in Los Angeles that provide reasonable and acceptable alternatives if performers were unwilling to take the risk of condom-less sex. Thus the construction of an image in which a pitiful porn performer “just can’t say no” in order to justify state intervention on their behalf is misguided and, in my opinion, posits a dangerously broad understanding of when an individual is “forced” to do something.

The second half of this argument, perhaps the most frequently voiced in the weeks leading up to election day, suggests that we ought to treat the porn set just like any other workplace, which would include putting in place occupational health and safety regulations. Indeed, Michael Weinstein, the president of the AIDS Healthcare Foundation has compared the measure’s spot inspections to ensure condom use to hot dog stand health inspections.[6] Other proponents of Measure B assert that it simply extends state regulations requiring protective equipment for occupational exposure to blood and other potentially infections materials, originally crafted for doctors, lab technicians, and dentists, to the adult film industry.

Yes, the porn set is a workplace. But we don’t, in fact, treat all workplaces the same. We allow vastly different levels of risk in the workplace based largely on the understanding that a competent adult should be able to assume a greater risk of harm in his career if he is fully aware of that risk.  Racecar drivers and football players certainly accept a much greater risk of harm in their respective workplaces than schoolteachers and accountants, and arguably more than porn performers. Yet most people would laugh if OSHA attempted to put a 100 mph speed limit on NASCAR races or demanded that the NFL only play ‘touch’ football.

Furthermore, it seems absurd to place porn performers under the same regulations as lab technicians and other healthcare professionals for exposure to potentially infections materials. It seems important that the cost to a technician of wearing protective gear is not only minimal in terms of time and inconvenience but also does not seriously alter her action’s ultimate intent: to test blood. Testing blood with gloves is not all that different from testing blood without gloves. However, I think a person can reasonably argue that performing sex with a condom is significantly different from performing sex without a condom. Indeed, this is exactly what performers have argued in response to Measure B: the performer James Deen argues that filming without a condom allows him to portray a certain type of fantasy that Measure B’s condom requirement will prohibit, while female performers like Nina Hartley argue that the nature of porn sex – far longer and with many more stops and starts than sex for the average person – makes the use of condoms painful and even dangerous if it results in vaginal tearing. Ultimately, then, there seems to be a difference in kind rather than degree between requiring protective gear for healthcare professionals and requiring condoms for porn performers. The former serves as a safety precaution, while the later serves as a prohibition.

Having addressed the strongest arguments for Measure B, I find that none of them justify the infringement on performers’ liberties that is entailed by government-enforced condom use. Stay tuned to see how these arguments play out in court, as the industry’s trade group, the Free Speech Coalition, has promised to challenge the measure as “unconstitutional on the grounds of forced expression.”

 

 


[1] Vote Yes on B, “The Issues,” http://www.yesonb.info/the-issues/.

[2] No on B, “What Does This Measure Actually Do?,” http://www.noongovernmentwaste.com/what.html.

[3] No on Government Wast Committee, http://www.noongovernmentwaste.com/fact_vs_fiction.pdf.

[4] Donald G. McNeil Jr., “Unlikely Model in H.I.V. Efforts: Sex Film Industry,” New York Times, November 5, 2012, http://www.nytimes.com/2012/11/06/health/unlikely-model-for-hiv-prevention-porn-industry.html?pagewanted=all.

[5] G.A. Cohen, “Are disadvantaged workers who take hazardous jobs forced to take hazardous jobs?” History, Labour, and Freedom: Themes From Marx (Oxford, Oxford University Press: 1988).

[6] Rong-Gong Lin II et al., “County will inspect porn sets for condom use under new law,” Los Angeles Times, November 7, 2012, http://latimesblogs.latimes.com/lanow/2012/11/county-will-inspect-porn-sets-for-condom-use-under-new-law.html.

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28 Responses to Condom County: Porn, Condoms and Liberty in Los Angeles

  • Owen Schaefer says:

    Hi Kyle,

    Your argument against measure B is very compelling – but I’m not sure you’ve fully made your case on the last point. Your argument against the workplace-safety argument relies on the idea that condom use is different in kind to non-condom use. But why is this morally relevant? There are other areas where (seemingly justified) safety regulations makes a difference in kind; this was one of the main arguments against requiring hockey players to wear helmets, for example. Or more broadly, many travel security regulations directly inhibit the main aim of travelers (getting to places quickly). Prehaps you think any such regulations that significantly affect some consensual practice are inherently unjust – but I think this would be going a bit far, ruling out any really significant safety regulations.

    Still, I think your overall argument against the measure still works, essentially by combining your response to the first point with the third point. We only find it justified to impose significant workplace safety regulations when those regulations will significantly reduce some risk. But if STD transmission (assuming your point about HIV transmission holds for STDs in general) in the porn industry is already minimal, it is hard to see how the measure’s health benefits (which would only be minimal) could outweigh the significant costs to the industry and its workers (not to mention the problematic interference with sexual practices).

  • Jess Ferro says:

    You mention HIV, but nothing about other STIs in porn? Research studies have found high rates of gonorrhea and chlamydia in the porn industry, even with their required testing regiment. In fact, the study found that 28% of performers were infected, which is higher than any other “civilian” population. Another study found porn performers to be 64x more at risk for gonorrhea and 34x more at risk for chlamydia when compared to the Los Angeles County population. Any medical or health professional would tell you that’s an example of an industry that cannot take care of itself. Performers deserve to be protected with condoms, which are fair, cheap, simple, and the single most effective way to prevent STIs.

    If your response is to simply sweep STIs like gonorrhea and chlamydia under the rug because they’re bacterial infections and thus curable with antibiotics, even the CDC has announced that our frontline antibiotics are failing. We now have drug-resistant gonorrhea (or as they call it, “super gonorrhea”). This is a serious matter, and continuing on the path of testing-to-treat will make matters worse for a legal industry.

    Here is the link to the research studies I referred to, which are all a matter of public record: http://publichealth.lacounty.gov/std/afi.htm

    Here is a link to the CDC announcement about the overuse of antibiotics: http://www.cdc.gov/Features/getsmart/?s_cid=tw_cdc1723

    • Michael Whiteacre says:

      Commenter Jess Ferro conveniently omits the study by epidemiologist and biostatistician Dr. Lawrence S. Mayer, MD, MS. PhD, available online, which found the methodologies and inferences by LA County Dept of Public Health (LADPH) to be “fatally flawed” and “without basis in science.”

      Also note that LADPH’s Dr. Peter Kerndt is a supporter of AHF’s crusade against the adult industry. LADPH was complicit in AHF’s destruction of the medical clinic for adult performers, and Kerndt himself has written in support of government censorship of ‘dangerous’ messages such as the portrayal of sex without a condom.

      Furthermore, the most recently published study on STIs in porn, derived from an apparently cherry-picked 4-month period in 2010, and sprung on the public as an election year “October Surpirse,” featured nearly one third participation by persons who had not even filmed an adult perfornance in more than 30 days (longer than the testing cycle back then). The significance of this is that nearly one third of the approximately 150 participants in this study (yes, the N was that low, and the study was NOT from the industry’s primary testing clinic) is that this was not a representative sample of working performers. More than 30% were not permitted to be hired at the time of their diagnosis, and moreover, having not worked in porn in over 30 days, they could have contracted these extremely common STIs anywhere.

      • Jess Ferro says:

        Mr. Whiteacre, I have read your reference of Dr. Mayer’s commentary and he is writing about a PowerPoint presentation, not the 2012 research study I am referring to.

        Your assumption that all the performers who were tested positive with gonorrhea and/or chlamydia were outside of the 28-day testing window stems from rose-tinted glasses. Many of the performers had been tested within the 28-day testing window and were still positive with gonorrhea and/or chlamydia. To add, performers that were tested positive in the study, even if they weren’t within the 28-day testing window, would have been entirely missed by the industry’s regular urine testing protocols. These were patients who had gonorrhea of the throat, which cannot be detected in a urine test.

        And if you believe that N=150 is a small number, you need to remind yourself that Ms. Diane Duke of the Free Speech Coalition and anti-B hire Mr. James Lee publicly stated that Measure B would only impact 280 performers. If the denominator is 280 performers, the study included more than 50% of the population. The article is a peer-reviewed scientific research study. The Free Speech Coalition has access to all STIs in the industry due to the APHSS testing system. Why won’t they release the data? Is it because the STI rates are as high as the 2012 research study shows?

        Your final comment about the apparent “destruction” of the medical clinic is incorrect. Adult Industry Medical went bankrupt even before the Porn WikiLeaks scandal.

        Remember, porn is a legal industry and should follow the law like every other legal industry in California. Cal/OSHA requires condoms, and the porn industry publicly states that they ignore this law. They have a responsibility to themselves as good corporate citizens and to their performers who deserve workplace protections like every other Angeleno to follow the law.

        • Michael Whiteacre says:

          Now we come to find that not only logic but simple mathematics eludes you. The 280 figure relates to the number of adult perforners who reside in Los Angeles County year-round today, in 2012, NOT the total number of person who work as performers in LA, and who visit or leave there temporarily. That number is closer to 1,300 and was unquestionably higher in 2010.

          Next, the tiny nonprofit AIM Healthcare was forced into bankruptcy by hundreds of thousands of dollars in legal expenses forced upon it by the actions of AHF president Michael Weinstein. Emails show him soliciting for plaintiffs against AIM, and stipulating that AHF would pay all legal costs. Weinstein filed frivolous complaints with the Department of Health and Human Services (later dismissed), Cal-OSHA (OSHA suffered a spectacular court loss on that one), LA County, and the permitting authorities. It was a dirty war of attrition waged by a goliath with a $200 million annual budget headed by a megalomaniac AIDS profiteer.

          As for the OSHA regulations you claim the adult industry should be following, those regs are currently IN FLUX. The Cal-OSHA standards board has been engaged in the process of re-writing them WITH the participation of the adult industry. The possibility of new, industry-appropriate regulations is a terrifying prospect to you condom peddlers at AHF, so AHF did and “end run” around the process with the unconstitutional Measure B.

          By the way, I recognize the “good corporate citizens” drivel as the talking points of AHF’s Mark Roy “Wolverine” McGrath — formerly employed by AHF’s fellow cabal members, UCLA and its “Reproductive Health Interest Group,” not to mention his short-but-eventful tenure at LA County Health.

          And, finally, you know as well as I do that 1) public disclosure of confidential medical information by FSC/APHSS would be illegal, and 2) FSC and APHSS do NOT have access to such medical information. APHSS is a database, compliant with medical privacy laws, which does NOT contain ANY medical data; it merely lists the performer’s status as being one of “in good standing” as

          • Michael Whiteacre says:

            … of a particular date range. ALL medical data remains with the performer’s health care provider.

            • Jess Ferro says:

              Mr. Whiteacre, your commentary is impressive and your paranoia outstanding. To assume I am a member of the AIDS Healthcare Foundation instead of a well-researched voter and proponent of a healthy workplace shows you have immense dedication to your cause. Or perhaps a case of short-sightedness. I am your target audience, remember. I’m young and I vote.

              Perhaps if the Free Speech Coalition had hired you instead of Mr. James Lee, the anti-B proponents could have channeled all of the Manwin funding into anti-Derrick Burts billboards and commercials. And then, with such a vindictive campaign, perhaps you could have swayed the 350,000 voters that ultimately decided on the fate of Measure B.

              Based on your 1,300 performer population from 2010, a sample size of 150 represents still represents 11.53% of the population. Even the US Census long-form reaches sample size percentages below 11.53 and is still a scientifically acceptable representation of the population being studied. To discount the population size as justification for your overall message that performers are free from STIs is, to re-use an earlier comment, short-sighted.

              While Cal/OSHA is still discussing the workplace safety law as it pertains to the adult film industry, remember that whatever Cal/OSHA produces will have to be equal to or better than the existing OSHA law. No matter what comes out of new Cal/OSHA regulations, there will still be condoms for performers to protect them from infections.

              While you are well-versed in the legalese of HIPAA, the Free Speech Coalition can still propose a research study to an International Review Board and collect data if they believed STI rates were indeed lower than LA County civilians. Perhaps Dr. Mayer could be the principle investigator? In the end, he could put together the most accurate PowerPoint presentation any MD, MS, PhD has ever seen.

              • Michael Whiteacre says:

                Wrong again. A few reasons;

                1) Nowhere in the federal OSHA regs is the word “condoms” used.
                2) The regs in place were written for employees of medical clinics and mortuaries, not film sets such as those where stunt performers work under conditions FAR more life-threatening than those experienced by adult performers. These regs, which would make adult production untenable if enforced, are thus by definition not industry-appropriate.
                3) Misapplied/non industry-appropriate regs are subject to court challenge.
                4) A state licensing scheme would exempt adult performers from Cal-OSHA jurisdiction.
                5) Industries can be otherwise granted exceptions through legislation.

                What your flawed analysis of STI data fails to account for is the logical, statistical, and scientific reality that NO test can prove to any legal standard where adult performers contracted common STIs such as gonorrhea or clamydia.

                This is because adult performers are not a separate poplulation, the way incarcerated persons, or even Nevada prostitutes who live and work at brothel ranches are. Adult performers are instead a part of the general population of LA county. They live and roam free among us! Moreover, they are sexually active adults; they have sex off set with each other, and with other members of the county population. Just as an employee at a bank would have a worker’s compensation claim denied which was based upon contracting the flu, a performer cannot show that he/she contracted an STI which is rampant in LA County (due to the spectacular failings of the County Health department and other publicly funded organizations such as AHF) at work and not somewhere else. When it comes to relatively rare infections, such as HIV or syphilis, then yes, it could likely be traced to a particular patient zero — but not so with g/c. Therefore, step one — determining and proving (beyond conjecture) a nexus between work and infection — fails.

                Step two in this madcap “public health” witchhunt is to prove a nexus between the infections among people who happen to work as adult performers and some outbreak among the rest of the population. NONE has ever been demonstrated. In fact, LA County has published voluminous risk assesments regarding STIs in its borders — guess what? The adult industry is not even mentioned.

                This drive to scapegoat adult performers — the MOST tested population on the planet — as the new Typhoid Marys is not only shameless fear mongering, it represents an obvious case of finger pointing to distract from the massive failings of the highly-paid trustees of public health.

                Los Angeles has seen its hospitals placed under federal control because patients were bleeding out in its hallways, and pooor indigents were being unceremoniously dumped on the streets of downtown LA. No one in local government wants to do anything but say the right things to the press. Political acts of cowardice such as Measure B provide cover for pandering politicians and useless buearocrats.

                For the government to act in a way that impinges upon rights and liberties, it must first show a “state interest.” The government, as a matter of law, does not have an “interest” in that which it cannot prove.

                Regarding your suggestion that FSC commission a study, it is not the duty of those who possess rights, liberties and other interests as a matter of law to prove ANYTHING or to justify their existence. It is the duty of the state to prove a basis for interfering with those aforementioned rights, liberties and interests.

                Finally, no you are not who I or the adult industry needs to convince. This is not an issue that was ever appropriate for the ballot. Ballot initiatives are for things like asking voters to decide whether a bond should be issued to build a new sports stadium, not to decide workplace regulations or creative content restrictions. Measure B is a costly farce which only serves to garner press attention for Michael Weinstein in an age where even the UN has announced that the end of AIDS is now feasible — something which would put AHF out of business. This is a money/attention/power grab. Full stop.

                • Jess Ferro says:

                  The goal of public health professionals is to work themselves out of the job. To assume any health care organization wants to perpetuate the HIV/AIDS epidemic out of fear of losing the job illustrates the root paranoia that bleeds into your authorship. Your conjecture regarding the AIDS Healthcare Foundation is disquieting.

                  Your legal commentary, on the other hand, is very interesting. Are you a lawyer? I am not, so I have research to do and cannot comment on your legal framework. I have no qualms about the hours you have spent researching the regulations, and I do hope someone is compensating you for your time.

                  Could you go into more details about your comparison between porn performers and stunt performers? The porn industry does not follow the same level of safety protocols as stunt performers. Stunt performers have protective gear, detailed plans, practice runs, legally required safety protocols, and insurance coverage. Do performers have comparable safety measures and insurance?

                  Even if Measure B wasn’t appropriate for the ballot, a vast majority of Angelenos still voted in favor of it. I anticipate your response to my statement will involve continued utilization of quotations around public health and the campaign run by the AIDS Healthcare Foundation. What is interesting, however, is that the porn industry had support from major news agencies (except La Opinión) and both the Libertarian and Republican parties (even though the industry is left-leaning). Social media sites were filled with Measure B discussions, and I believe some industry folks may have traveled by bus around LA County to show their vocal opposition. I saw and heard advertisements and read numerous articles and blogs about performers like James Deen who defended the industry’s testing protocols.

                  But I also read articles and heard from performers who were vocal in their support for Measure B. These are performers who said they didn’t feel safe on set. These are performers who wanted condoms to be required. These are performers who talked about pre-medicating with antibiotics before getting STI test results. These are performers who love their profession but believe workplace safety laws should apply to them as well. Every single legal industry in California has a duty to protect their employees. The porn industry is the only legal industry to publicly state that they will ignore the law. This is unfair for performers who are denied condoms.

                  If the condoms truly represent the final straw in government imposition, the industry can enjoy their laissez faire, self-regulation in Somalia: government-free since 1991.

                  • Michael Whiteacre says:

                    Stunt performers are permitted to use safety equipment only subject to the requirements of the shot. If the performer is doubling for a businessman falling down a flight of stairs, he will not be permitted to wear the safety gear that would protect him most: a helmet. There is no absolutely safe way to do many, many stunt gags. In porn, condom-less sex, quite simply, IS the shot.

                    Adult performers have safety precautions commensurate with the risk. Not only has there not been an on-set HIV transmission in over 8 years, there has never been a single on set fatality in professional porn. Hollywood studios, sadly, cannot make the same boast.

                    As for the alleged support of active adult performers, you’ve now retreated to AHF’s 2009 position — performers actually want this. That’s poppycock. There were no active performers who signed up with AHF. Measure B’s performer constituency was: two paid spokesman (Darren James and Derrick Burts) both of whom contracted HIV years ago (not on a mainstream porn set, not in California, and outside the auspices of industry testing protocols), a retired performer friend of Burts’ from before he began working as a performer in 2010 (Hayden Winters), and retired performer Aurora Snow, who shot 600 scenes in which she was famous for condom-free high risk sex and who, at the height of her stardom directed more than a dozen porn movies in which she did not demand her performers use condoms. Only now, on the eve of an election, as well as a strip club tour needing promotion, did she recall all the times she wished she’d used a condom on set, lamenting that directors don’t really look out for the talent.

                    Current adult performers — the constituency falsely laid claim to by AHF — do not want their choice limited, their rights and liberties infringed, and their jobs eliminated. They have spoken, as loudly and clearly as imaginable on this issue.

                    Keep trying…

                    • Jess Ferro says:

                      Mr. Whiteacre, your reflections mostly consist of hyperbole and animosity that do not belong in professional debate. If you choose to denounce research studies and hard-working health professionals, there are appropriate, scientific paths you can take to address the research methods and conclusions. To blame the authors the way you have is artlessly malicious. To consistently present Dr. Mayer’s analysis of a PowerPoint presentation, which has only been posted on the Free Speech Coalition website, is not how scientific debate progresses. It is convenient to accuse what is difficult to consider.

                      You mention that the safety precautions implemented by the adult film industry have prevented HIV for the past eight years. I am not prepared to debate you regarding recent HIV infections, but I am very interested in the comments you made regarding the recently heightened testing protocols for other STIs. You pronounced that the research study by Rodriguez-Hart et al. (2012) is worthless, yet also state that this study represents a reason to improve the adult film industry’s testing protocols. If the study is, as you believe, entirely incorrect in its analysis of infection rates, why would the industry now decide to improve testing protocols? If the industry’s testing protocols now include regular testing of gonorrhea of the throat, is it not a response to the findings of the 2012 study?

                      The final comment I want to make pertains to the performers you mentioned. Watching you pick apart and scold members of the adult film industry is disheartening and represents poor presentation. To call attention to the hypocrisy of performers promoting Measure B yet not using condoms themselves exhibits your misunderstanding of power and agency. In an industry that pays performers less money if they choose to protect themselves with condoms (or worse, fires them) you cannot point the finger at the performers. They are the employees, not the employers. They are not unionized and they are unfortunately replaceable. To blame them the way you have, Mr. Whiteacre, is disrespectful of their welfare and well-being.

                      There are other performers who have publicly promoted Measure B on social media sites. Before the election, performer Olivia Wilder said on camera that she would vote for Measure B: http://www.youtube.com/watch?v=ugm4GdEDr3o&feature=youtu.be&t=1m8s

                      You mentioned and immediately cast aside Aurora Snow, but other performers like Jenna Haze, Katja Kassin, Venice, Jenna Presley, and recently Michelle Honey came out in support of Measure B. I am not interested in reading your insincere tear-down of their opinions in order to exclaim that only performers who are vocally opposed to mandatory condoms deserve recognition for their hard work in the adult film industry. That is, to put it bluntly, prejudiced.

                    • Michael Whiteacre says:

                      My response to Jess Ferro’s comment printed below:

                      1) The 2012 study is worthless in that it doesn’t reflect that which it purports to reflect: higher than reported STI rates (PRESUMABLY contracted or transmitted on set) industry-wide. The study, however, was not conducted at one of the clinics at which performers test as part of their standardized, universally-followed routine (then every 30 days, today every 28 as a minimum, but every 14 for those who work more frequently). Instead, it was derived from data supplied by an outside medical clinic (and one which, I must add, does not have the greatest reputation either) that people visit when they suspect they need treatment.

                      All the 2012 numbers show is that: out of a subset of performers (under the old testing model) who suspected they had contracted something (and without proof specifying WHERE they might have done so), some percentage had indeed contracted an STI somewhere and some percentage had not.

                      While the overly-broad conclusion of the study is nonsense, there are still things that can be taken away from the data to improve performer health and safety. Regardless of whether or not the 2012 study reflects actual rates, it does seem to indicate another area of risk to be addressed, regardless of prevalence. I find it hilariously transparent that you would take me, and the adult industry, to task for seeking ways to continually approve the health situation for performers!

                      2) This is not a scientific journal. I am pointing out the practical, conceptual and logical failings of the (very few) studies, and the fact that they were conducted and/or sponsored by parties with a well-known, clearly stated agenda. If you don’t like the facts, that’s your problem not mine.

                      3) It is not I who misunderstands the performer/producer dynamic, but you. Where are all these performers who’ve been fired for wanting to use condoms? I’ve heard of one instance in 19 years. And yes they’re paid less or hired less often; that’s supply and demand. Try getting a job in a restaurant’s kitchen if you tell the owner you “have a thing about knives” or prefer to not work too close to a hot oven.

                      You write that performers are “unfortunately replaceable.” This, once again, demonstrates that you misunderstand the performer/producer dynamic. A performer with market value/star value can name his or her terms — that’s how business operates. If Katy Perry wants to record an acoustic album, that’s what she does. If Jenna Jameson wants to appear in a condom-only movie, that’s what she does.

                      You know why unsigned bands play weddings and do sets of covers? Because they are replaceable and interchangeable from a market perspective. The rules of supply and demand which rule other forms of entertainment apply equally to adult entertainment. 99.99% of workers are “replaceable” because uniqueness is the rarest of exceptions.

                      4) As for the tiny percentage of performers who support condom use, only a fraction of that small number have publicly expressed a broad understanding of the many issues involved. Additionally, Jenna Haze (who, like Ms. Snow, is no longer an active performer) has also made public comments contradicting the remarks you consider “pro” Measure B. Moreover, the number who may or may not support their rights and liberties being limited by a special interest group forcing state action is irrelevant. The constitution protects even those who don’t appreciate their rights and liberties.

                      Finally, I’ve never claimed that “only performers who are vocally opposed to mandatory condoms deserve recognition for their hard work in the adult film industry.” That’s more inane grandstanding on your part. Everyone deserves recognition for their achievements, but that doesn’t justify the right of any one of them to diminish the freedoms of their peers, or of those who provided them the opportunity to achieve.f

                    • Michael Whiteacre says:

                      My response to Jess Ferro’s comment printed below:

                      1) The 2012 study is worthless in that it doesn’t reflect that which it purports to reflect: higher than reported STI rates (PRESUMABLY contracted or transmitted on set) industry-wide. The study, however, was not conducted at one of the clinics at which performers test as part of their standardized, universally-followed routine (then every 30 days, today every 28 as a minimum, but every 14 for those who work more frequently). Instead, it was derived from data supplied by an outside medical clinic (and one which, I must add, does not have the greatest reputation either) that people visit when they suspect they need treatment.

                      All the 2012 numbers show is that: out of a subset of performers (under the old testing model) who suspected they had contracted something (and without proof specifying WHERE they might have done so), some percentage had indeed contracted an STI somewhere and some percentage had not.

                      While the overly-broad conclusion of the study is nonsense, there are still things that can be taken away from the data to improve performer health and safety. Regardless of whether or not the 2012 study reflects actual rates, it does seem to indicate another area of risk to be addressed, regardless of prevalence. I find it hilariously transparent that you would take me, and the adult industry, to task for seeking ways to continually approve the health situation for performers!

                      2) This is not a scientific journal. I am pointing out the practical, conceptual and logical failings of the (very few) studies, and the fact that they were conducted and/or sponsored by parties with a well-known, clearly stated agenda. If you don’t like the facts, that’s your problem not mine.

                      3) It is not I who misunderstands the performer/producer dynamic, but you. Where are all these performers who’ve been fired for wanting to use condoms? I’ve heard of one instance in 19 years. And yes they’re paid less or hired less often; that’s supply and demand. Try getting a job in a restaurant’s kitchen if you tell the owner you “have a thing about knives” or prefer to not work too close to a hot oven.

                      You write that performers are “unfortunately replaceable.” This, once again, demonstrates that you misunderstand the performer/producer dynamic. A performer with market value/star value can name his or her terms — that’s how business operates. If Katy Perry wants to record an acoustic album, that’s what she does. If Jenna Jameson wants to appear in a condom-only movie, that’s what she does.

                      You know why unsigned bands play weddings and do sets of covers? Because they are replaceable and interchangeable from a market perspective. The rules of supply and demand which rule other forms of entertainment apply equally to adult entertainment. 99.99% of workers are “replaceable” because uniqueness is the rarest of exceptions.

                      4) As for the tiny percentage of performers who support condom use, only a fraction of that small number have publicly expressed a broad understanding of the many issues involved. Additionally, Jenna Haze (who, like Ms. Snow, is no longer an active performer) has also made public comments contradicting the remarks you consider “pro” Measure B. Moreover, the number who may or may not support their rights and liberties being limited by a special interest group forcing state action is irrelevant. The constitution protects even those who don’t appreciate their rights and liberties.

                      Finally, I’ve never claimed that “only performers who are vocally opposed to mandatory condoms deserve recognition for their hard work in the adult film industry.” That’s more inane grandstanding on your part. Everyone deserves recognition for their achievements, but that doesn’t justify the right of any one of them to diminish the freedoms of their peers, or of those who provided them the opportunity to achieve.

                    • Michael Whiteacre says:

                      My response to Jess Ferro’s comment printed below:

                      1) The 2012 study is worthless in that it doesn’t reflect that which it purports to reflect: higher than reported STI rates (PRESUMABLY contracted or transmitted on set) industry-wide. The study, however, was not conducted at one of the clinics at which performers test as part of their standardized, universally-followed routine (then every 30 days, today every 28 as a minimum, but every 14 for those who work more frequently). Instead, it was derived from data supplied by an outside medical clinic (and one which, I must add, does not have the greatest reputation either) that people visit when they suspect they need treatment.

                      All the 2012 numbers show is that: out of a subset of performers (under the old testing model) who suspected they had contracted something (and without proof specifying WHERE they might have done so), some percentage had indeed contracted an STI somewhere and some percentage had not.

                      While the overly-broad conclusion of the study is nonsense, there are still things that can be taken away from the data to improve performer health and safety. Regardless of whether or not the 2012 study reflects actual rates, it does seem to indicate another area of risk to be addressed, regardless of prevalence. I find it hilariously transparent that you would take me, and the adult industry, to task for seeking ways to continually approve the health situation for performers!

                      2) This is not a scientific journal. I am pointing out the practical, conceptual and logical failings of the (very few) studies, and the fact that they were conducted and/or sponsored by parties with a well-known, clearly stated agenda. If you don’t like the facts, that’s your problem not mine.

                      3) It is not I who misunderstands the performer/producer dynamic, but you. Where are all these performers who’ve been fired for wanting to use condoms? I’ve heard of one instance in 19 years (and it was done by an inexperienced production manager in opposition to the policy of the producer). And yes they’re paid less or hired less often; that’s supply and demand. Try getting a job in a restaurant’s kitchen if you tell the owner you “have a thing about knives” or prefer to not work too close to a hot oven.

                      You write that performers are “unfortunately replaceable.” This, once again, demonstrates that you misunderstand the performer/producer dynamic. A performer with market value/star value can name his or her terms — that’s how the market operates. If Katy Perry wants to record an acoustic album, that’s what she does. If Jenna Jameson wants to appear in a condom-only movie, that’s what she does.

                      You know why unsigned bands play weddings and do sets of covers? Because they are replaceable and interchangeable from a market perspective. The rules of supply and demand which rule other forms of entertainment apply equally to adult entertainment. 99.99% of workers are “replaceable” because uniqueness is the rarest of exceptions.

                      4) As for the tiny percentage of performers who support condom use, only a fraction of that small number have publicly expressed a broad understanding of the many issues involved, and NONE have been actively involved in either the Cal/OSHA process or in any of the industry’s own efforts on the subject. Additionally, Jenna Haze (who, like Ms. Snow, is no longer an active performer) has also made public comments contradicting the remarks you consider “pro” Measure B. Moreover, the number of individuals who may or may not support having their rights and liberties limited by a special interest group forcing state action is irrelevant. The constitution protects even those who don’t appreciate their rights and liberties.

                      Finally, I’ve never claimed that “only performers who are vocally opposed to mandatory condoms deserve recognition for their hard work in the adult film industry.” That’s more inane grandstanding on your part. Everyone deserves recognition for their achievements, but that doesn’t justify the right of any one of them to diminish the freedoms of their peers, or of those who provided them the opportunity to achieve.

  • Nick East says:

    I agree with Jess! Were you intentionally trying to exclude STI’s in your argument? Seems a little deceptive, if you ask me! Now, lets try to show the world the REAL arguments instead of the fluff you made up out of thin air, apparently!
    1. Testing isn’t even full panel testing! No test for Herpes, Hepatitis A,B, or C, tinea versacolar, no visual inspection, etc. (I could go on but you get the point, right?)
    2. Here’s the deal… I get tested, then I have unprotected sex with a woman. Why is that test still valid? How many women can I have unprotected sex with before that test is no longer valid? 14 to 28 days? Ya see, that makes no sense. Now… I am not a doctor and I cannot proclaim with absolute certainty that I haven’t caught an infection. WHY SHOULD I BE ALLOWED TO NOT USE A CONDOM AND POTENTIALLY PASS AN INFECTION ON TO THE FEMALE TALENT? What gives me that right? A piece of paper that says I was clean two weeks ago? Four weeks ago? Why is that not laughable? Because it’s the truth!
    In conclusion, all you seem to do in this article is to confuse the issue! FAIL!

  • Kyle Edwards says:

    Thanks to all for the comments.

    Owen – I definitely think, as you lay out, that the empirical data on the surprising low rates of HIV in performers is useful in convincing proponents of workplace standards that this is not a case in which the cost is justified by the potential reduction in risk of harm. However, I am attempting to make the stronger argument that because this is a consensual act in which there is no risk of harm to third parties, we are not justified in prohibiting performers from having and portraying sex in the way that they intend. We think fairly time-consuming security measures at the airport are justified due to the small risk of extremely great harm to third parties. And I would still argue that while we might require hockey players to wear helmets, we wouldn’t prevent them engaging in the body-checking that seems so central to the sport – and it is the later rather than the former that I see as analogous to requiring porn performers to wear condoms. I’ll think on how to find a more rigorous way to articulate this.

    Jess, Michael and Nick – I focused on HIV, as opposed to other STIs, for two reasons. First, supporters of the measure focused centrally on HIV in their campaigns, singling it out from other STIs probably because there is greater public anxiety over and stigma against HIV. Second, while both sides of the debate seem to accept the empirical data that HIV rates are extremely low among porn performers, data on other STIs is far more contested. Like Michael Whiteacre, I found that the most recent study that Jess cites on STI rates in porn performers relies on data that has been repeatedly refuted. Furthermore, there are strong arguments that STI rates in the general LA county population used in such studies are grossly underestimated, making performers’ rates look far more out of step than they actually are (see: http://blogs.laweekly.com/informer/2011/06/porn_std_study_county_health.php). Finally, even if further studies proved that STI rates are in fact higher in the population of porn performers, those in favour of mandating condoms would still need to show that third parties, outside the population of consenting performers who freely accept the risks of their career (including, Nick, a female performer that consents to condomless sex knowing full well that her partner has engaged in unprotected sex since his last test), are harmed.

    • Jess Ferro says:

      Could you please point to the “repeatedly refuted” reports about the 2012 study, “Sexually Transmitted Infection Testing of Adult Film Performers: Is Disease Being Missed?” Your reference to the LA Weekly article from 2011 refers to a PowerPoint presentation based on another study.

      To focus solely on HIV because that’s what the Measure B campaign focused on is misleading and ignoble. Even the printed argument for Measure B refers to “preventable sexually transmitted infections, including gonorrhea, chlamydia, syphilis, herpes, hepatitis, and HIV.” (Source: http://www.smartvoter.org/2012/11/06/ca/la/meas/B/). Cherry-picking your data like that is not very distant from the unfortunate work of Dr. Andrew Wakefield.

      Your final argument is that performers who are aware of the risks should be allowed to make their own decisions. Many performers currently don’t have the option to make their own decision when it comes to health and safety. Performers have publicly stated that if they ask for condoms on set, they lose the job or get blacklisted. If the producer does allow condoms, the performer gets paid less. This is not how a workplace should function. Performers deserve protections because they are hard-working citizens. No performer should come home to a partner and hope they don’t infect their partner with an STI.

  • Nick East says:

    So Kyle, why has bumfights gotten such a bad rap? Those homeless men consented to the bull crap done to them and by them. It seems that the new argument against condoms is “They know the risk they take, so let them!”… Unfortunately, the diseases they are passing back and forth are becoming harder and harder to treat as a result. And since a multitude of performers are also escorting, the diseases are being spread to the community at large.
    Oh, and Kyle? I checked the link for the supposed quote (funniest quote ever) “makes the use of condoms painful and even dangerous”. Yeah, the link didn’t have that quote in there so it’s you who are in fact saying that using condoms is DANGEROUS!!!! Please explain how condoms are dangerous! Should the girls at the Bunny Ranch or other legal brothels stop using them!!! Oh the calamity!!! Did condoms start spontaneously combusting or something?
    Just so you know, I and many other male talent used condoms quite frequently and they’re no big deal! But now to hear that they’re DANGEROUS!!!! Do tell, Kyle!!! I’m all ears!!!

  • Kyle Edwards says:

    Thanks again, Nick and Jess, for the comments.

    Jess, it is my understanding that it is the same contested data from 2010 (this provides an overview of that dispute: http://www.examiner.com/article/report-l-a-county-public-health-data-on-porn-industry-sti-rates-flawed) that was used in the most recent study released in 2012. I believe it is relevant and justified to focus on HIV in an argument against Measure B when it was the salience of HIV in Yes on Measure B campaigns that drew a great deal of votes, which I think is the case. Furthermore, as I mentioned previously and I think is illustrated by the debate here in the comments, while data about the low HIV rates in performers is accepted on both sides, data about other STIs is not conclusive. Since it is clear that testing works to keep HIV transmission low, it seems to me as if the burden lies on proponents of Measure B to show that this is not the case for other STIs like syphilis, chlamydia, and gonorrhea. And if your response is that they already have met that burden, our disagreement devolves into a debate over empirical data, which is unlikely to be concluded until additional and more rigorous studies have been carried out. Finally, regardless of the empirical data, I still don’t think that proving that performers accept a greater risk of harm in the legitimate choice (see my response to Nick below) to be a porn performer is a justification for state intervention – you would still need to show harm to third parties to convince me. And that seems to be the fundamental point at which we diverge, although I do realize that many people would agree with you if other STI rates in performers did turn out to be extremely high.

    Nick, I think the counterexample of “bumfights” actually helps to flesh out my third argument in the original post. We think it justifiable to prevent bumfights because we don’t think that homeless people have any reasonable or acceptable alternatives and in this sense they are not, in a morally significant sense, making a free choice to engage in the fight. Their alternative is starvation or at the very least extreme hunger, which we do not consider to be a reasonable or acceptable alternative. In contrast, we frequently provide monetary incentives for other individuals to physically fight because we think they make a real choice in consenting to do so – think of boxing, wrestling, and mixed martial arts. The alternatives for performers that don’t want to engage in condom-less sex – working with a production company that only films with condoms, like Wicked Productions, or taking a non-porn job – seem to me extremely reasonable and acceptable.

    In response to your second comment, the phrase “the nature of porn sex…makes the use of condoms painful and even dangerous” is indeed my own language and was not claimed as a quote by anyone else – there is simply a hyperlink to a female porn performer making that argument. So while it may be my language, it is an argument made by numerous female performers, who presumably have a greater understanding of the effects of porn sex with condoms than either you or I. Here is another female performer, Stoya, arguing that using condoms specifically in porn sex (note that this is not an argument about sex with condoms more generally) can be both painful and dangerous: http://www.guardian.co.uk/commentisfree/2012/nov/16/stoya-measureb-porn-condoms-la. To quote her directly:

    “But here’s the thing: sex on a porn set differs from recreational or procreational sex. It can be more vigorous and in order to get the necessary footage, penetrative sex goes on for much longer than the average penetrative act. To put it bluntly, we have abnormally large penises banging away at vaginas and rectums for an abnormal amount of time. Even with extra lubricant, condoms tend to cause abrasions in the delicate tissue of a vagina or anus. These tears can be painful, but more importantly they are open wounds in an orifice. As long as the condoms do not fail, this is just painful and inconvenient. But if a condom does fail in an orifice with fresh wounds, this seems likely to increase the risk for transmission of an STI if one is present.”

    • Jess Ferro says:

      To clarify, there are two peer-reviewed research studies we are discussing:

      The first study is titled “High Chlamydia and Gonorrhea Incidence and Reinfection Among Performers in the Adult Film Industry” by Goldstein et al. (2011). Data collected in this study took place between 2004 and 2008. The study is available online here: http://publichealth.lacounty.gov/std/docs/afi/goldstein0711.pdf

      I will refer to the Goldstein et al. (2011) study as the 2011 study.

      The second study is titled “Sexually Transmitted Infection Testing of Adult Film Performers: Is Disease Being Missed?” by Rodriguez-Hart et al. (2012). Data collected in this study took place in 2010. The study is available online here: http://publichealth.lacounty.gov/std/docs/afi/KerndtAFISTD.pdf

      I will refer to the Rodriguez-Hart et al. (2012) study as the 2012 study.

      For good measure, here is Dr. Mayer’s report where he analyzes a PowerPoint presentation based on the 2011 study: http://fscblogger.files.wordpress.com/2011/06/dr-mayer-report-fsc-afi-sti-06-03-111.pdf

      Mr. James Lee, at the time hired by the Free Speech Coalition, responded quickly to the publication of the 2012 study by stating that the data from the 2012 study was the same data from the 2011 study and should therefore be under the same scrutiny of Dr. Mayer’s 2011 report. This statement was hastily published by Mr. Lee and unfortunately incorrect yet never remedied. Dr. Mayer’s report referred to a PowerPoint presentation about the 2011 study, and the 2011 study (as mentioned above) is based on data collected between 2004 and 2008. Mr. Lee did not realize (or perhaps care) that the 2012 study was based on data collected in 2010 and therefore entirely unrelated to Dr. Mayer’s report.

      The Free Speech Coalition blog post where Mr. Lee incorrectly compares data from the 2011 study data to data from the 2012 study data is available online here: http://fscblogger.wordpress.com/2012/11/01/no-on-government-waste-committee-denounces-last-minute-std-study-by-yes-on-b-campaign-as-desperation-tactics/

      I apologize for the redundancy, but I want to ensure these two studies are understood as separate entities.

      On the topic of condoms, abrasions, and increased STI risks, it is difficult to take Stoya’s argument seriously for two reasons. First, no scientific research study has ever demonstrated that condoms increase the risk of abrasions or infections. Second, if the type of on-set sex described by Stoya actually increased the risk of abrasions and infections, condom-only porn studios like Wicked Pictures, and essentially all gay porn studios, would not be condom-only.

      • Michael Whiteacre says:

        The 2011 and 2012 studies are near worthless, or, worse, propoganda pieces, as made clear by the dissection of the flawed methodologies as explained by Dr. Mayer (regarding the 2011 study), the involvement of the same cast of overtly anti-adult industry/pro-censorship characters (Kerndt, Tavrow, et al) in all the studies and articles, the utter absence of accurate numbers on STIs in the (largely untested) population at large, as well as for the reasons I cited in my comments above. There are NO good studies.

        Furthermore, the results of the 2012 study (of 2010 data NOT taken from the industry’s testing clinic, but from another medical office in the San Fernando Valley) does not make a case for mandatory condoms; if anything it makes a case for broader/more sensitive and more frequent testing. And indeed, since 2010, adult industry testing has become both broader/more sensitive AND more frequent: syphilis testing is now monthly, with a shorter window period test than was previously employed in the old six month testing cycle; HIV testing is performed with the extremely short eclipse period Aptima PCR-RNA test; and the largest, most prolific producers have moved to a 14-day testing cycle.

        Finally, Jess Ferro’s conclusion that if condoms led to increased infection rates due to abrasion they wouldn’t be used in “essentially all” gay porn and at Wicked Pictures is ridiculous on its face. Firstly, many many gay scenes are shot bareback; in fact, it’s the hottest selling gay niche. Next, Wicked shoots bigger-budget movies, and thus has a production slate smaller than most other companies. Wicked contract stars such as jessica drake film about seven movies per year. And, lastly, since the gay side of the industry does not employ regular, standardized universal STI testing, there would be no way to know what the infection rate actually is in gay porn, let alone whether condom scenes increased or decreased the rate of infection.

    • Nick East says:

      First of all, let me apologize for the misunderstanding we seem to be having, Kyle.
      I was a performer for over twenty years. I am a member of the AVN Hall of Fame as a performer. I have performed in COUNTLESS condom scenes over the course of that time. Your comment that “who presumably have a greater understanding of the effects of porn sex with condoms than either you or I.”
      I DO KNOW THE EFFECTS OF CONDOM SEX ON SET. YOU ARE SPEAKING TO A HALL OF FAME PERFORMER WHO KNOWS FIRSTHAND THAT CONDOMS IN PORN ARE NO BIG DEAL!
      Please stop trying to make an argument against using condoms that entails ADDED danger to the participants.
      And let me state unequivocally that the rates of STI’s in the industry are SKY HIGH and I actually quit acting in porn because I got sick of catching bacterial infections every other month! People like Mr. Marcus who believed that passing STI’s was the risk the other talent took (and they needed to pay their rent) are the reason porn became “SKANKY”. It’s time to clean it up and with legitimacy comes responsibility. If the adult film companies think they have the right to spread illness to their employees and subsequently the public at large, they are out of their minds. AND if you think you are doing good by defending their ability to infect their workers because of the attitude of “they knew what they were getting into” then you, sir, are sadly mistaken.
      The very fact that you will defend a companies ability to infect their workers with STI’s says volumes about you, and I wonder if you’d feel the same if your daughter or son were in the business?

      • Michael Whiteacre says:

        In his usual hysterical fashion, Nick makes several misstatements in his comment, including the supposed reason why he is no longer an active performer, and he misrepresents the Mr. Marcus case. Marcus did not work when he knew he was infected (once diagnosed he sought treatment and began working again only after taking the amount of time off that his doctor recommended), and furthermore there has been no evidence ever offered that Marcus infected anyone on a set.

        To paraphrase the great writer Maggie McNeil, every profession, from war to hairdressing to politics, has its disgruntled ex-members, but only in sex work are these individuals ever imagined to be representative.

        • Dave Frame says:

          Hmmm… I think you’re empirically wrong about the singularity of sex work in this regard… I can think of at least four other sectors where disgruntled ex-members of an industry are seen as being the only true voices, with happy ex-members of the same industry are dismissed on grounds of either false consciousness or vested interests: ex-investment bankers, former politicians and nuclear power engineers and ex-cops all have the same thing going on, presumably because all four involve work in areas where values conflicts are rife.

          But surely the main ethical point here is captured in two things Nick says: “with legitimacy comes responsibility” and in his point regarding informed consent, especially for industry newcomers. If we set aside the gory details of infection rates, surely, Michael, you wouldn’t dispute the following two points:
          (1) Industries that are seen as legitimate need to show standards of care towards their labour force at some appropriate level of protection for that industry. As Kyle argues this will vary by industry because the trade-offs between safety and efficiency/productivity/performance are not constant, but at least in principle we might use the same sort of reasoning about trade-offs that we’ve used that we’ve arrived at elsewhere in society*.
          (2) This duty of care extends, especially, to newcomers and vulnerable workers. [Imagine a novice fisherman drowns on the job. We wouldn't, for a moment, think it reasonable if his employer justified the lack of workplace safety by exclaiming "he knew what he was getting into!" The point is precisely that he didn't. That's why he died.]

          Nick & Jess are arguing for a specific industry practice because they think it will alleviate workplace-related injury. You dispute this. Cool. [I have no opinion either way.] But would you accept propositions (1) & (2) above? Or do you think “s/he knew what s/he was getting into” is a good defense? Kyle?

          *Think, for instance, of construction, which has seen a huge change in workplace practices over the last 40 years. This has come at some cost to the industry, but (pretty much) everyone agrees that it’s (basically) the right thing to have done.

          • Kyle Edwards says:

            Thanks for your comments, Dave. Here is how I would lay out my argument very briefly:

            1) We ought not interfere with the decisions of individuals when these decisions are based on rational, autonomous and reflective thought and do not harm third parties.
            2) The decisions by porn performs not to wear condoms while filming are based on rational, autonomous and reflective thought and do not harm third parties.
            3) Therefore, we ought not interfere with porn performers decisions not to wear condoms.

            So while my argument does rest on the premise that performers “know what they are getting into” when they have sex without a condom, it is in a much stronger sense than you seem to suggest with that phrase. There are certainly cases where an individual chooses something in a weaker sense, where the decision is either not rational, autonomous, or reflective, and in these cases it is permissible to interfere; most people, even proponents of assisted suicide, think it right to prevent a clinically depressed person from committing suicide because their judgement is impaired. (By this idea of “rational, autonomous and reflective thought,” I merely mean to represent those standards that we hold other adult citizens to when judging whether we ought to take their choices seriously – instances where we provide informed consent, for example).

            In the present day of HIV/STI awareness, and especially in light of the many public controversies surrounding condom use in the porn industry in the past 15 years, it seems implausible to me that performers do not realize the risks of having unprotected sex when they choose to do so. Therefore, I think we are morally obliged to respect that decision.

            • Dave Frame says:

              Hi Kyle, Thanks for the comments. That’s admirably clear. I buy the argument, with caveats about premise (2): how do we usually ascertain the status of workplace safety standards? Surely not by philosophical reflection alone? Are there unions for workers in the porn industry? I know there are sex worker unions here in NZ, where prostitution is legal, and I know they have input to policy with the aim of keeping participants safe. Are there appropriate institutions representing industry participants in the porn industry? I’d be more reassured of the truth of (2) if there were.

  • Nick says:

    Three things.

    1. It seems like this is all getting needlessly complicated. You shouldn’t be able to pay people do something that risks their health when there is an extremely cheap and easy way to almost completely reduce that risk. End of story. A lot of the comments above seem to fail to register the simplicity of this fact: that it does not matter what you are selling (the fantasy of non-condom sex), if what you are selling requires paying people to do something that has undo risk. Studies or no studies, it’s stupid to say that adult performers aren’t engaging in riskier health conditions when they have unprotected sex. Use your common sense here. If there is an easily preventable risk, you can’t pay people to do that risky thing. If what you are selling has to be risky, then it’s illegal and you can’t sell that. What’s the controversy?

    2. The argument that performers who feel pressured to use condoms have “reasonable alternatives” is offensive to the struggle for worker’s rights in all industries. Do you also think that there shouldn’t be a minimum wage and that there should be no laws that regulate how businesses treat their employees at all? Because the line of reasoning here suggests precisely this, that if a job is bad employees can always just go get a new job. That’s a pretty delusional way of thinking about how capitalism works.

    3. The idea that Big Public Health and not the multibillion dollar porn industry is the “goliath” in this situation is extremely silly.

    • Kyle Edwards says:

      Hi Nick, thanks for your comments.

      In response to your first point, that “if what you are selling has to be risky, then it’s illegal and you can’t sell that,” it seems like we do indeed sell many things that are risky for the “performers” involved, such as tickets to NFL games, NASCAR races, and Cirque du Soleil performances. You also seem to suggest that we are justified in creating workplace safety regulations when there is a potential for reducing harm significantly and the cost of implementing that safety regulation is low. But I think you are just taking into consideration the financial cost of condoms. Performers have argued, I think convincingly, that the cost of mandating condoms is extremely significant in terms of free expression; it alters the nature of what they are attempting to do in a way that requiring construction workers to wear helmets does not.

      I think your second point, about minimum wage laws, is extremely important and I’m glad you brought it up. I maintain that it seems improbable that the only job a person could find in Los Angeles is as a porn performer. In a hypothetical small town in which the only local employer was a porn producer, we might indeed conclude that individuals were forced to take porn jobs, but I don’t think we can say that about Los Angeles.

      This requirement that there be “reasonable alternatives” in order to designate a choice that entails a risk of harm as free – in the sense that we ought not then interfere with that choice – binds, for me, libertarian ideas about autonomy to more liberal social policies like the minimum wage law. If we care about individual autonomy, if we think that individuals making informed choices for themselves is a good that we as a society ought to promote, then it seems important to make sure that citizens are in the position to make such autonomous decisions. A minimum wage law attempts to ensure that citizens lacking the skills or education necessary for more higher paying jobs still have a reasonable alternative – you could make an argument that the current minimum wage is in fact too low using this reasoning. Similarly, this idea of autonomy as a good can also support redistributionist tax policies – if we think (referring to an earlier example) that homeless persons do not make a free choice in engaging in “bum fights” and we are therefore permitted to intervene, we as a society also ought to work to bring them up to some minimum level of well-being such that their only alternative if they refuse to fight is not a state of extreme hunger.

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