In 2009, the AIDS Healthcare Foundation filed a grievance with CalOSHA against a San Francisco-based gay porn production studio, Treasure Island Media, in which they claimed that by not using condoms as part of their scenes, TIM was in violation of the "bloodborne pathogen" standard requiring the use of "barrier protection" in all scenes as a means of STI protection. Never mind that no one in any one of those scenes were found to be HIV- or STI-positive, or to have been infected with HIV or any other STI as a result of those scenes; the point was, according to AHF, to establish CalOSHA's power to impose the condom mandate at will against any porn production company statewide. CalOSHA had sanctioned TIM in Feburary of last year with two violations of the standard, to which TIM appealed to CalOSHA's built-in judicial appeal process.
Well...last Friday, CalOSHA Administrative Law Judge Mary Dryovage made her ruling on the case; siding with CalOSHA and upholding the sanctions against Treasure Island Media. In her ruling, she essentially rehashed the standard AHF propaganda points that condoms were the only true means of preventing disasterous outbreaks of STI's, and that porn performers absolutely must be regulated as "employees" for their own "protection", and have condoms forced on them for their own "good".
Naturally, AHF is crowing loud about this "landmark" decision, saying that it effectively ends the debate on condoms in porn by establishing CalOSHA's inevitable right to regulate bareback porn out of business. Here's AHF's spokesperson Ged Kenslea, riffing on, via proven AHF sycophant...errrrrrrrrr, LA Weekly regular columnist Dennis Romero:
AHF spokesman Ged Kenslea told us that one of the most important aspects of the ruling ...The decision was also praised by yet another even more pro-AHF sycophant, former producer Mike South, who breathlessly repeated the same old AHF talking points that this all but clinched the condom debate....not to mention that not only could Cal-OSHA could set the rules regarding the condom mandate, but because their rules could be expanded nationwide by the federal OSHA, they could be enforced everywhere in the US. In other words, to rephrase AHF President Michael Weinstein's well quoted saying: "Whereever they go, we will follow them."
... is its affirmation that performers are indeed employees due protection under under workplace safety rules. The group has long argued that federal law prohibiting exposure to bloodborne pathogens such as sperm at the workplace applies to California's adult performers.
The industry has said that porn stars are very part-time workers who paid per "scene" as independent contractors.
The ruling by Judge Mary Droyovage wrote that, without condoms, there is "substantial probability that employees would suffer serious exposure resulting in serious physical harm or death if violation occurred."
Kenslea said AHF's stance is that the ruling applies only to condom use and that it does not mandate dental dams, surgical masks, eye protection, gloves and other gear feared by the industry.
The case involved a "bareback" sex tape by Bay Area studio Treasure Island Media. The video featured multiple partners on film, none apparently using condoms. Treasure Island appealed Cal/OSHA's sanctions, leading to the ruling.
The AHF was "a catalyst for" the ruling, Kenslea said, because the case included a complaint from the organization. He said he was surprised the studio appealed.
Case closed, then?? Ahhhhh....not quite.
There is another side of the story, of course, and The Real Porn Wikileaks just so happened to get Treasure Island Media's response to the ruling and subsequent barrage of BS from AHF.
For starters, they noted that while Judge Dryovage did sustain the original CalOSHA sanctions, she did significantly reduce the fines involved: totally eliminating the fine for one count (from $9,000 to $0); and reducing the fine for the other count from $9K to $6,300.
And secondly, they loudly announced that the principle of defending sexual freedom demanded that they further appeal the decision to an even higher court. Here's attorney Karen Tynan, who represents TIM, speaking via TRPWL:
[...] “Having the fines lowered by a total of nearly two-thirds is a very significant win for us,” said Karen Tynan, Treasure Island Media’s attorney.Apparently, AHF went to the tried-and-true tactics of antiporn crusaders of yesteryear: the old "OMG...OMGOMGOMGOMG...the SHOCK AND HORROR of such disgusting, nasty, filthy buttsexin' goin on!!!" card.
Tynan went onto say, “We will be appealing the decision with a Petition for Reconsideration on the grounds that the decision was unsupported by the facts.” Among the issues regarding the sufficiency of evidence: Cal/OSHA’s star witness was a disgruntled former employee who had been terminated in 2010 and their medical expert was an osteopath (a branch of medical practice that emphasizes the treatment of medical disorders through the manipulation and massage of the bones, joints, and muscles.) who last treated communicable diseases almost twenty years ago.
At issue was The 1000 Load Fuck, directed by Morris. The 2009 video pushes the envelope, taking porn into taboo regions of the forbidden and depraved. In a bold and unprecedented experiment, one young man voluntarily takes a gallon of semen up his ass.In effect, AHF used this movie the way antiporn prosecutors used Ira Issacs' alleged scat videos, or Gail Dines used "gonzo" porn: as a means of shocking and scaring and shaming "aberrant" sexual practices to illicit the usual response of anger and disgust and "There outta be a law against that!!!" meme. Or, in this case, "They better cover that up with a condom!!!"
“We watched the video over and over and over. Then we watched it in slow motion, reverse, and paused it on almost every frame,” said TIM General Manager Matt Mason, who testified for almost a day and a half and withstood hours of cross examination by Cal/OSHA attorney Kathryn Woods. “The state prosecutors took special interest in the turkey baster and the liquid fun in that scene.”
It remains to be seen how the appeal process will resolve this case...or if this "landmark" decision really is the end of the line for bareback porn....although, I'm sure Isadore Hall and Michael Weinstein are already writing the speeches that Hall will use to integrate this ruling into their next legislative attempt to force Measure B statewide, or to aid CalOSHA to craft the ever evolving "bloodborne pathogen barrier protection" regs as a wedge to be imposed nationwide.
And, I'm just as sure that those who perform and enjoy bareback porn -- whether gay or straight or bi or whatever combination thereof -- will equally battle to defend their freedom and right to do so.
Either way, this isn't over, by any means. Stay tuned.