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Controversial Condoms: Should a Condom Mandate Within Pornography Exist? By Erin O’Connor
O’Connor 2 When the adult film industry within the United States is making around thirteen billion dollars a year and ninety-six billion dollars globally, we have to wonder what may be sacrificed for this profit (Dines, 2010 ). Children are viewing pornography at younger and younger ages, so it is not uncommon for their first viewing to be well before their first sexual interaction. With this lack of personal experience, children are learning a number of their expectations for sex and intimacy from pornography. These expectations can include how long intercourse will last, the positions they may use, and whether or not protection will be involved. Regarding the use of protection, as these young children are watching videos on sites like Pornhub or Xtube, they most likely will not see condoms being used since a vast majority of mainstream pornographers have chosen to omit condoms from their work. Is this an acceptable choice? Or should condom use be mandated within the industry? In November of 2012, Los Angeles County in California became the first city in the United States to create legislation mandating condom usage in the porn industry. Voters passed the Safer Sex in the Adult Film Industry Act, or Measure B, and it officially went into effect on December 14th of that year. This legislation requires condoms to be used in the production of any pornography made within county lines. In addition to the required usage, the measure also required mandatory public health training and random searches of pornography sets to ensure legislation is being followed. With this legislation in place, any producer in Los Angeles who applies for a filming permit must follow a strict process: filling out an application, receiving training on blood borne pathogens, and paying a fee. Even after this permit is awarded, it can still be suspended or revoked if producers do not comply with regulations, which include condom usage in all vaginal or anal intercourse scenes, as well as clearly informing performers of this mandate and the regulations needing to be followed. If these requirements are not met, producers
O’Connor 3 risk being fined or jailed for the offense. Government officials also gained the ability to immediately shut down a production if they see it as an immediate danger to public health (Langner, 203-204). Measure B brought up the question of whether or not an individual’s freedom and choice should be sacrificed for public health. This idea of prioritizing public health is due to the possible spread of sexually transmitted infections being caused by the lack of protection within the industry. The Safer Sex in the Adult Film Industry Act was first created by the AIDS Healthcare Foundation. Their goal was to reduce the spread of sexually transmitted infections resulting from the lack of condom usage. Records were showing an increased number of positive STI tests for both gonorrhea and chlamydia within the Los Angeles adult film industry. From these results came concern for the health of performers in the industry, as well as the health of the general public. The foundation feared that the infections spreading amongst the adult performers would leak outside of the industry and into the public (Langner, 204-205). The AIDS Healthcare Foundation is a billion dollar, worldwide system of networks that work to provide treatment to those suffering from AIDS and advocacy programs to help prevent it. They already have centers in thirteen different states, as well as numerous other countries (“Countries”). With Measure B being pushed by this foundation, it is likely that prominent states within the industry, such as Nevada and New York, will be receiving similar pressure in the future. They also have very strong support from organizations like Culture Reframed, which works to tackle concerning, aggressive, and pervasive pornography within our society. The organization’s founder, Gail Dines, spoke as a supporter of Measure B, sharing the ways in which pornography should be considered a genuine public health crisis (“Solving the Public Health Crisis”). This information and support helped solidify the public health argument that Measure B rested upon.
O’Connor 4 Despite support, Measure B met harsh resistance from those who felt that mandated condom usage was a violation of their rights. The Free Speech Coalition was the main force behind this side of the fight. This coalition was created, in theory, to protect the first amendment rights of those within the adult entertainment industry. What many do not know is that the Free Speech Coalition is headed by people who are financially invested in the porn industry. The current president of the coalition is also one the largest producers of gay pornography in the adult entertainment industry (“Board of Directors”). It then could be argued that on the surface the coalition is a defender of the people’s rights, but underneath is only defending their moneymaking industry. The position and argument of the coalition was that as long as the sex was occurring between consenting adults, then the condom should not be forced on the performers. According to the Free Speech Coalition, performers would still have the freedom to choose to use or not to use protection in their personal lives, allowing the possible spread of infection to occur outside of the industry anyway. One of the central arguments against the measure was the lack of recognition for STI testing already in place. The coalition argued that almost all performers are required to be tested at least once a month, if not more. If a performer is found to be positive with a sexually transmitted infection, they are supposedly not cleared to work on any production. For these workers, mandated STI testing is how their health and safety is managed when condoms are absent. In addition to these oppositions was the cost-based argument. Business leaders within the industry, as well as performers, were outraged by the possible tax increase to enact these regulations. They saw the possible millions of dollars being used towards these regulations as better spent on education or health care (Langner, 205-207). However, research shows that production companies and organizations like the Free Speech Coalition have
O’Connor 5 not donated their own money to programs focusing on sexual education and healthcare. This could reflect the validity of their concern for the success and well-being of such institutions. Vivid Entertainment, an adult film company, was one of the biggest industries to oppose ballot Measure B. After it was passed, two of the company’s producers, Kayden Kross and Logan Pierce, formed a lawsuit against it. Their argument claimed that the legislation was infringing on the first amendment rights of those within the industry. Kross and Pierce said it restricted their “sexual speech” and the portrayal of already lawful events within the films. They argued that using condoms ruined the fantasy of a worry free sexual world that consumers desired. In the end, the court took the side of Measure B. Their decision was based on the viewpoint that the legislation’s intention was to protect the industry’s overall sexual health, not to attack their first amendment rights, and that the intention behind the legislation was what mattered. Viewing Measure B’s objective as protection of public health, rather than limitation of speech, actually wound up putting the legislation outside of a first-amendment context. This decision placed the health of both those inside and outside of the industry above the possible limitations of production. The decision stood strong even after the producers decided to appeal it to the Ninth Circuit (Langner, 205-208). This final court decision shows the strength of such legislation, as well as the local support for such a health precaution. After Measure B occurred, the Los Angeles Times covered the rather rapid plummet of the adult industry in the area. Industries began to move their production locations outside of county lines and into other states. Nevada’s and Florida’s adult market grew as a result of Los Angeles’ decline. Those who did not move but also chose not to follow the condom mandate often made more underground porn without a permit. The overall permit sales for explicit films decreased by about 90% the year after the act was set in place. Without the thousands of
O’Connor 6 pornographic works being filmed and produced in the county, the local economy suffered. The porn industry can provide well over 10,000 jobs in a given area, and most of these were eliminated after the mandate. A real concern was that individuals would follow the porn industry right out of the county. The houses they buy, daycare they pay for, and local businesses they support all declined when their jobs moved them elsewhere (Verrier). Measure B is one that has been used when discussing how beneficial mandated condom use could be to the industry. Los Angeles was the first and is still the only place within the United States to have such a mandate, and this makes avoiding such legislation significantly easier for companies that do not want to follow the legislation’s requirements. Pornography companies in Los Angeles county feared what following the legislation requirements might do to their profit. Pornographers have been making vast profits off of bareback sex, or sex without a condom for at least two decades, and to add condoms to their filming would be risking their sales. Moving the whole company became a popular choice over conforming to the legislation. The passage of Measure B led to the creation of Proposition 60, which would have mandated condom usage in the adult film industry for the entire state of California. If passed, this would have been the first larger scale mandate set in place to try and influence the steps being taken to protect employee’s health within the industry. As with Measure B, condoms would be required for vaginal or anal penetration. If they could not be visibly seen in the film, producers would need to be able to prove they were used in the making. The arguments to support Proposition 60 were slightly different from Measure B because they truly did focus on the safety of the performers, rather than the impact it was having on those outside of the business. Supporters of Proposition 60 wanted producers and directors to be held accountable for work safety, similar to any other occupation. They wanted to place the responsibility in the hands of
O’Connor 7 those in charge, rather than expecting performers to pay for their own STI testing (Langner, 204206). It is currently hard to even find specific information on the regulations set by the Occupational Safety and Health Administration (OSHA) within the porn industry. Earlier this year, the California division of OSHA rejected the bill that would have mandated condom usage statewide, require producers to pay for medical visits for performers, and require STI testing every three months (Dembosky). With these regulations being proposed, it is clear that none of them currently exist in the industry. The opposition had various arguments as to why Proposition 60 needed to be shut down. One argument was the possible threat those in the industry would be facing. Proposition 60 would give anyone the right to sue any individual or company producing or even distributing pornographic material if condoms were not used in its making. Those that could be sued include anyone from performers, to set-assistants, to television networks. People who have no control over the production could receive retaliation for it not meeting regulatory standards. The concern was even stretched to the possible consequences a married couple may face after making a personal sex tape in their home if a condom had not been used. Those opposing did not like the “all or nothing” approach that came with Proposition 60 (“Adult Film Condoms”). In November of 2016, Proposition 60 was brought to California’s voters. It failed with a 54% to 46% vote (“California Proposition 60”). As of now, the U.S does not have any statewide mandates, and the failure of Proposition 60 may or may not influence future attempts to create one. When people within the industry itself oppose a bill that is designed to improve their health and safety, people outside the industry may question the benefits of the legislation. It is important to understand that there are many reasons these individuals oppose this bill. One of
O’Connor 8 these reasons would be the fact that a performer’s income relies on the success of their films, and this legislation may threaten the money they can make within this career. The legislation that was proposed for the statewide bill may not have possessed the strength needed to genuinely make a change within the industry. A regulation may need to occur on a federal level to be affective. Passing legislation one state at a time limits the protection performers are receiving. Companies can easily just switch locations in order to avoid governmental control. Just as many producers have left California, they will leave another state if it means they can keep producing the product that sells. Running from the legislation will be too easy until it is a nationwide law. Such a legislation would be incredibly hard to pass, considering not even a whole state accepted the mandate. Those invested in the porn industry are extremely strategic when it comes to protecting their freedom, as well as their money, in the workplace. I do believe, however, that a nation-wide legislation is a possibility in the future because of the level the adult entertainment industry has reached. Their work has become beyond easy to access and is influencing people every day. With an uncontrolled and widespread industry gaining so much power, governmental officials will likely eventually try to regulate it one way or another. One minority group fighting back against a nation-wide mandate would be those making gay porn. When both pieces of legislation are examined, there is no distinction between regulations within straight pornography and those within gay pornography. Many people within the gay porn industry see this as a huge weakness of the mandate. For years, the gay community was targeted as the vector of HIV. This stereotype led to the frequent use of condoms both in personal and professional sexual interactions between same-sex partners. One reason gay pornographers choose not to use condoms in their films is an attempt to end the negative stigma against the gay community. Condom use is often seen as symbolic of performers having HIV,
O’Connor 9 thus some producers have decided to fight this idea by taking condoms completely out of the production. This is why gay, bareback (condom-less) pornography is so empowering to so many directors and performers in the industry. With the percentage of those infected with HIV decreasing steadily and the recent improvement in treatment and care, the performers have chosen to take this risk in order to embrace the freedom they did not have for years before (Langner, 211-217). Measure B has ended this fight within their community in Los Angeles. Being mandated to use condoms means something very different for those in the gay porn industry than it may mean for those within the straight porn industry. As Measure B was being reinforced and Proposition 60 was being pushed, companies wondered how they would keep their work appealing and sexy if condoms had to be used in it. Wicked Pictures has already been achieving this since the 90s, proving that condoms did not necessarily decrease viewership or profit. During an AIDS scare in the industry in which a male performer was found to be positive and had spread the virus to various other performers, fifteen different pornography companies vowed to use condoms in their production to protect their performers. Within two years of that vow only three companies continued to practice this protection. Today, Wicked Pictures is the only company to consistently use condoms in its work. The company does not attempt to hide their condom usage. When browsing their site, images immediately displayed on their home screen have condoms visible, with both anal and vaginal penetration being shown with condoms. The choice to consistently use protection has not prevented them from staying a successful, competitive company. Wicked actually won 14 Adult Video News Awards just this year, proving consumers are still a fan. Interestingly enough, the owner and president of Wicked Pictures, Steve Orenstein, was not in favor of mandating condoms within the industry. This was due to his resistance to
O’Connor 10 governmental control over a private business. He also feared what this mandate may lead to in the future, such as dental dams becoming mandatory. He himself has even questioned if condoms were still necessary in his own productions when sales were not as high as he would like them to be. As of now, he has not felt the need to change his policy and health precautions, but that does not mean he believes everyone should be required to use the same methods he does. Wicked is looked at as having an advantage because the Measure B legislation would not impact their Los Angeles productions. Orenstein knows however that this advantage is not realistic, and that companies can create just as much competition as they do now from another state (Morris). Even with Wicked’s production choices taken into account, Los Angeles performers as a whole are not provided with health care resources and protection specifically for them, other than the condom mandate. From 1998 to 2011 there was a medical center, the Adult Industry Medical Health Care Foundation clinic (AIM), dedicated to providing these services. It was run by a former porn actress, Dr. Sharon Mitchell, who created it after an adult performer infected at least five other performers with HIV. Dr. Mitchell had witnessed her own friends and colleagues in the industry suffer from these diseases and not receive proper help (Comino). She wanted to ensure that the blatant neglect of performer’s health care needs was not repeated in the future. Unfortunately, the center closed down about seven years ago. The clinic was denied the license needed to keep the business going. While it was open, the center provided services from STI testing to pregnancy tests for those within the adult entertainment industry (Hennessy-Fiske). Since its closure, the condom mandate has been the only health care created specifically for those in the industry within Los Angeles. Performers seeking services related to their sexual health have to utilize a general physician or center for the frequent testing they need in order to keep working.
O’Connor 11 When examining the arguments for Measure B and Proposition 60, it is clear that the impact and spread of sexually transmitted infections seems to be the main concern when it comes to mandated condom use in the pornography industry. The industry sticks by the argument that performers are frequently tested for STIs when condoms are not used. A study done in 2010 in Los Angeles before the mandate had been set in place, looking at undiagnosed sexually transmitted infections within the adult film industry. The researchers gained volunteers through the AIM Health Care Foundation, and wound up with a group of 168 participants, all of whom worked in the adult film industry. The performers were tested for both Gonorrhea and Chlamydia, using urine specimen, vaginal swabs, oropharyngeal swabs, and rectal swabs. The typical testing for those in the adult industry does not include the three swab options, leaving the results coming from the possible inaccuracy of urine testing. It was found that forty-seven performers had a sexually transmitted infection they were unaware of before the testing. Thirtynine of these cases were solely Gonorrhea, five were strictly Chlamydia, and the last three performers were diagnosed with both STIs. Half of all of the cases were asymptomatic, leaving the participants unaware of the health concern. It was also found that eleven of those diagnosed with Gonorrhea would have been found negative if only urine testing had been done. This means these performers would not have known they were positive if they received the typical testing those in the adult film industry tend to receive (Rodriguez-Hart et al., 992-994) In addition to the spread of sexually transmitted infections, another concern the public has had is the influence porn may have on the viewers. Young children, predominantly boys, are viewing internet pornography at younger and younger ages, as well as having their first sexual intercourse experience at a younger age, often before they received any proper sexual education. When porn is the first exposure an individual has to sexual intercourse then their “education” and
O’Connor 12 opinions may reflect this. Research has found that the consistent viewing of pornographic films can influence an individual’s personal sexual behavior. It was then found that the more these adolescents viewed risky sexual behavior, the more likely they were to engage in similar risky behavior themselves (Owens et al.,107-110). The concern with this imitation is how and whether or not it may be influencing adolescents’ choice of protection. With no visual proof of protection being shown in the majority of pornography, is it possible that viewers are not seeing the need for it in their personal lives? It is not unlikely that one’s opinion on condom usage in the production of pornography is very conflicted. I am hesitant to pick one side over the other for a number of reasons. Views going against a condom mandate may tie into the idea of a person’s agency. Those supporting complete agency wouldn’t like the idea of condom use being forced onto a performer who would prefer to not use one. What needs to be noted though is the distinction between a performer choosing to not use a condom and a producer not allowing them to have a choice. When a producer refuses to allow a performer to decide if they want to use this form of protection or not, they are taking away a person’s agency just as much as a mandate would. Unfortunately, as condom-less sex is deemed more profitable within the industry, producers are indeed making these choices for their performers. Sex, whether done as an occupation or for personal pleasure, is an act over which a person should have complete control. Anyone participating in it should agree on what will be done. These choices and agreements should also apply to protection. For the sake of a person’s freedom of choice and control over their own body, I would prefer a regulation being set that mandates the option of protection be provided. A producer would be required to offer a performer the choice of using protection, without influencing their choice. Condoms would possibly be present in some films but not others, and this would ideally not
O’Connor 13 impact the sales. The choice would then be on the performers being impacted, not the government. Even with this viewpoint, there are reasons a condom mandate can be supported. With the lack of proper health and safety regulations within the industry, no real care is being taken to ensure the prevention of STIs. The precautions taken are at the discretion of the producer, and this has left health policies ranging from multiple STI test being required to almost no precaution being taken at all. The performers then have to take the initiative to get tested or examined if their company does not require it. Having the condom mandate would at least be a first step to a proper industry wide set of regulations for the sake of performers’ health and safety. Producers would not be able to refuse the use of this protection within their films, finally working towards a more consistent set of health precautions for the industry as a whole. A condom mandate could also be a helpful transition to an even more efficient and protective healthcare mandate. The condom mandate should not be the final piece of legislation in regards to performer’s sexual health, but it can act as a stepping stone for further regulations. While it is controversial, this type of legislation is something that needs to be addressed further. Until 2012, individuals did not successfully create a legislation such as this. AIDS and various other STIs had been known about for years, but no legislation had been passed for workers being impacted by them regularly. As the porn industry grows, so will concern about its impact on society. I think this genuine consideration for both sides is how a piece of legislation will pass that will better please all involved. Not everyone will ever be happy, but a decision impacting so many people should not be made solely by those just outside of the industry. In the end, the goal is for a safe and healthy workplace to be provided for all those in the adult entertainment industry, but how this specifically should be done is still to be decided.
O’Connor 14 Work Cited 9 to 5: Days in Pornography. Directed by Jens Hoffmann, Strand Releasing, 2009. “Adult Films: Condoms, Health Requirements, Initiative Statue.” California Secretary of State, 2016, http://voterguide.sos.ca.gov/en/propositions/60/arguments-rebuttals.htm. “Board of Directors.” Free Speech Coalition, 2017, https://www.freespeechcoalition.com/aboutfsc/board-of-directors/. Accessed 4 May 2017. “California Proposition 60, Condoms in Pornographic Films.” Ballotpedia, 2016, https://ballotpedia.org/California_Proposition_60,_Condoms_in_Pornographic_Films_(2 016). Accessed 2 May 2017 “Countries.” AIDS Healthcare Foundation, 2017, https://www.aidshealth.org/#/countries. Accessed 3 May 2017. Dembosky, April. “Should Porn Stars Use Condoms? California Grapples With Regulations.” National Public Radio – KQED, 18 Feb. 2016, http://www.npr.org/sections/healthshots/2016/02/18/467132549/should-porn-stars-use-condoms-california-grapples-withregulation. Accessed 28 April 2017. Dines, Gail. Pornland: How Porn Has Hijacked Our Sexuality. Beacon Press, 2010. Division of STD Prevention. “Sexually Transmitted Diseases Surveillance 2015.” U.S Department of Health and Human Services, 2016, https://www.cdc.gov/std/stats15/stdsurveillance-2015-print.pdf. Accessed 2 May 2017. Hennessy-Fiske, Molly. “Porn Industry Clinic in Sherman Oaks is Closed by L.A County.” Los Angeles Times, 10 December 2010, http://articles.latimes.com/2010/dec/10/local/la-meporn-hiv-20101210. Accessed 3 May 2017.
O’Connor 15 Langner, Bailey. “Unprotected: Condoms, Bareback Porn, and the First Amendment.” Berkley Journal of Gender, Law, and Justice, vol. 30, no. 2, 2015. Pp. 199 – 225. http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1346&context=bglj. Accessed 4 May 2017 Morris, Chris. “Condoms in Porn? Just Another Day at Wicked Pictures.” CNBC, 15 Jan 2013. http://www.cnbc.com/id/100359796. Accessed 3 May 2017 Owens, Eric et al. “The Impact of Internet Pornography on Adolescents: A Review of the Research.” Sexual Addiction & Compulsivity, vol. 19, pp. 99-122.http://psych.utoronto.ca/users/tafarodi /psy427/articles/Owens%20et%20al.%20 (2012). Accessed 4 May 2017. Rodriguez-Hart, Cristina, et al. “Sexually Transmitted Infection Testing of Adult Film Performers: Is Disease Being Missed?” Sexually Transmitted Diseases, vol. 39, no. 12, 2012, pp. 989 – 994. https://www.ncbi.nlm.nih.gov/pubmed/23191956. Accessed 5 May 2017. “Solving the Public Health Crisis of the Digital Age.” Culture Reframed, 2017, http://www.culturereframed.org/about-us/. Accessed 3 May 2017. Verrier, Richard. “Porn Production Plummets in Los Angeles.” Los Angeles Times, 6 August 2014. http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-onlocation-laporn-industry-20140806-story.html. Accessed 2 May 2017.