Sunday, June 29, 2014

Porn Panic 2014: The Cali Senate Labor Committee Hearing on #AB1576 -- Part Deux (Now With 50% MORE AHF BS!!)

OK..we continue now with my review of last Wednesday's hearing on Isadore Hall's condom mandate/testing/documentation bill, AB 1576, before the California State Senate Labor and Industrial Relations Committee. If you want to re-read Part 1 of this essay for background, feel free by all means.

When we last left, the opposition of this joint effort of Izzy Hall and the AIDS Healthcare Foundation had just exited the microphone, but not without doing significant damage to the case for mandatory condoms in porn and weakened testing and forced documentation to the state. In particular, performer Lorelei Lee was especially devastating whole planks of AHF's illogic for justifying shoving condoms and dental dams and PPE down and up perfomers' orfices. Quoting again Mark Kernes' review of the hearing from AVN:
When it became Lee's turn at the rostrum, she noted that she was delivering to the committee "a petition of over 600 performers who have signed to say they have grave concerns with this bill and they strongly oppose it.

"I also have reached out to and spoken with over 100 performers myself, who have expressed their concerns to me," she added. "There can be no doubt that the majority of performers oppose this bill.
"The author of this bill does not speak for performers," she charged. "The sponsors of this bill do not speak for performers. They have not sat down with us. They have dismissed our attempts to give input, and the result is a bill that is shortsighted, that disregards any of our actual labor concerns, and that would mandate testing protocols that are in fact less strict and less rigorous than the ones we now have in place."

Lee also addressed the health privacy concerns: "In addition to jeopardizing our safety, this bill would force us to consent to the sharing of our medical information with the state. Mr. Hall has amended the bill so we no longer share that information with our employers, we share it with the state. This is a dangerous precedent to set, and I do not believe they would ask this of workers in any other industry."
Also there to deflate the AHF balloon of myopia was FSC Chairwoman Diane Duke, who offered a sterling defense of the current PASS screening/testing system, as well as the caveat that the entire exercise would potentially be in vain due to constitutional issues with both the condom mandate and the documentation requirements.
When it became Diane Duke's turn to speak, she emphasized that there had been no on-set HIV transmissions in the adult industry in ten years.

"The speakers who spoke earlier today contracted HIV in their private lives," Duke stated. "We have strict protocols, as Lorelei has mentioned, in the industry already. That has resulted in no on-set transmission of HIV, and that's nationwide we're talking about. Just to put that in perspective, in LA County alone, daily, five cases, new cases of HIV occur every single day. So in LA County, just five a day. Nationwide, none on set in 10 years."
Duke also warned that there is currently a lawsuit in Los Angeles County regarding Measure B, which is "a very similar bill [a law, actually], not as onerous as this bill"—and that portions of it had already been found unconstitutional in federal court.

"The enforcement provision of that has been found unconstitutional," she noted. "The narrow issue of condoms has gone on appeal. The oral arguments were in March, so we're expecting a decision handed down by the end of the year. So this bill may be pushed through and may be found unconstitutional before it is even able to make it to law, so I really urge everyone not to create a law that may be found unconstitutional."
That last paragraph was in relation to the ruling by federal district judge Michael Pregreson which upheld most of the provisions of Measure B, the condom mandate ordinance passed in 2012 by voters  in Los Angeles County, while striking down provisions dealing with enforcement and collection of fees from porn production companies and due process procedures. That ruling is currently under appeal in the Ninth US Circuit Court of Appeals, both on the constitutional grounds that the mandate violates First Amendment rights of free expression by imposing a content-based restriction on legal speech, and on the ground that AHF has no legal standing to defend the law because they are a third party not bound to enforce the ruling.

After that, there were brief statements of testimony from other opponents, raging from performers Jizz Lee, Amber Chase, Veruca James, and Chanel Preston of APAC; to reps from the St. James Infirmary in San Francisco, to reps from the porn syndicate MindGeek, among others.

Then, the Q&A from the committee members got going....and it turned out to be eye opening. First...
It was then the committee members' turn to ask questions, and Sen. Holly Mitchell, who voiced support for the bill, asked if passage of the bill would affect any plans that CalOSHA has to revamp its health code to include regulation of the adult industry. AHF's Martin said it wouldn't affect it at all, and noted that it was AHF which had brought the lack of condom use in the adult industry to CalOSHA's attention in the first place. Martin also noted, in response to one of Sen. Mitchell's questions, that "You all just approved a restoration of 26 employment slots at CalOSHA for investigation purposes, because one of the problems during the recession is that they cut and cut and cut, and were not able to enforce the law as vigorously as they would like. That will now change now that you've been able to restore that money for them," referring to a budget bill.
Of course, that was no surprise, considering that CalOSHA had been colluding with AHF from the get-go on attempting to rationalize the condom mandate, and that one of the big issues that afflicted Measure B was that the funds for enforcement would come directly out of the permit fees imposed on the "pornographers". That issue wouldn't exist with 1576 because the enforcement would be entirely on CalOSHA's dime, with money probably appropriated to them from general revenue. (Though, I'm sure that AHF will be more than willing to chip in with all that grant money they get from the state as well.)

In addition, that "revamp" of the health code to bring adult porn producers into compliance (and ultimately, be enforced nationwide through the Federal branch of OSHA) would effectively impose not only condoms and "barrier protection", but also effectively outlaw nearly every bit of current porn fashion in the name of "STI protection". No anal or vaginal penetration AT ALL unwrapped. No facials. No spooge shots in the vicinity of the butthole or vagina, or anywhere from the neck up or between the belly and the knee. No double anals or double vaginals, and possibly even no "double penetrations" (ass and pussy simultaneously) or "airtight" scenes (mouth, ass, and pussy simultaneously). No ass-to-mouth scenes, either. There was thought of allowing unwrapped oral sex scenes, provided that the perfomers therein subject themselves to doctor's approval and a regimen of Hepatitis C/HPV vaccinations prior to clearance, but that has not so far made it into the draft proposed regs. Effectively, the only allowed acts of "closure" would be internal ejaculation into a condom anywhere, or "nutting off" on approved parts of the body.

Next up, this highly illuminating response by AHF legal counsel Rand Martin to an inquiry by Sen. Mark Leno on the potential constitutional issues. Naturally, Martin simply blew that off in a whiff.

Sen. Mark Leno, who gave an impassioned statement at the end of the hearing about why he opposed the bill, asked Martin to comment on the constitutional issues raised by the Vivid lawsuit against Measure B, but Martin downplayed the possible effects of a ruling in that case.

"The issue of First Amendment protections under Measure B is now before the Ninth Circuit, and we have no idea when it will be decided," Martin said. "So we acknowledge that this is not done in terms of the court's ruling. However we don't believe that the issue of First Amendment is ultimately going to prevail. We appreciate the trial court's decision in that regard and [it] echoed our concerns. I would also point out that ultimately, again, this bill is about documentation and not about the underlying condom requirement, so I suppose in one scenario, that in the future, the court could throw out the condom requirement, that could ultimately have an impact on the regulation of it, which is what this bill is, is about the regulation of that requirement. Obviously, it would not be enforced at that point. However, we don't want to hold off on moving forward with this important documentation requirement on the off-chance that a court, a higher court will ultimately decide that there are certain First Amendment protections that are not being afforded under Measure B, and Measure B, of course, is what's being enforced."
Of course, the documentation requirements have their own constitutional issues, including that federal law called HIPPA, on top of the free expression/content-based speech restriction issues. But, if this bill is not about mandating condoms, why is AHF, who has built their organization squarely on the condom mandate for the past 5 years, so readily backing it?? It's not as if they even have their own brand of condoms to pitch to people for the goal of making lots of money off condom ads....errrrrr, spreading the word about "safer sex", right??

Then there is that little thing about the "FIVE!!! KNOWN!!! HIV!!! INFECTIONS!!! IN!!! PORN!!!!1111ONEHUNDREDELEVEN111!!!!" meme that turned out not to be so accurate...so much so that the Sacramento Business Journal had to print a retraction from the LA County DPH rebuking Hall's claim. When Leno inquired Martin about that bit, the response by the latter was classic....in blowing the roof off the entire Bullshit Mountain built around the condom mandate.
What was of particular interest was Martin's response when Leno brought up the fact that after the last Assembly hearing on the bill, the Sacramento Business Journal was required to print a retraction of its previous statement that there had been some HIV transmission within the industry on film sets.

"There has been a misunderstanding," Martin said, "and I'm sure we—and the opposition is just as guilty about perpetuating this: The bottom line is, because of California HIV privacy laws, it is impossible without a county public health investigation to actually determine where a transmission occurred. We have tried to be very careful to not say that HIV transmission occurred; we have said that HIV cases have happened within the adult performer community in a very short period of time last year, but we have not said that they happened on the set. The opposition has said, and they said it today, that it did not happen on set. They don't know any better than we do whether it happened on set or not. The bottom line is, because it could happen, and we believe that it has, that doesn't mean it's right or it's accurate, but we believe it has, it's important to make sure that protection is available."

As previously noted, the industry does indeed know, because of its testing procedures, that transmission did not occur on set, and AHF has previously at least strongly implied that it had, and one might suspect that Martin's backpedaling here might have something to do with Peter Acworth's recent threat of bringing a cease-and-desist order against AHF for strongly implying that on-set transmissions did occur.

In the faraway magical Bullshit Mountain occupied and ran by AHF and Izzy Hall, facts that deviate from the party faith simply flow off their backs like....you know...crap through geese. "We don't know if it occured or not, and they don't really know either, but we BELIEVE people are DYING of AIDS because of them slutty pornsters not wrapping up with OUR brand of condoms, and Goddessdammit, we need to DO SOMETHING NOW before our gravy train runs out....ahhhh, I mean...before another performer gets infected and DIES!!!!!!" Also, I'd say that Cameron Bay's  and Rod Daily's (and Derrick Burts') paychecks from AHF are essentially cashed with the assertion that the idea that HIV was indeed spread on that Kink.com set is more than just a "strong implication"....whatever the actual evidential facts may be.

The discussion then turned to the porn performer surveys cited by Izzy Hall and AHF at the beginning to justify the condom mandate: the 2010 survey done by UCLA and CalOSHA, and the more recent 2013 survey done by UCLA, which were both used by AHF to allege that porn performers were up to their asses in STI's. The 2010 study had already been dissected and debunked by Lawrence Mayer (his pdf here); the later study has been effectively woodsheded both by Mark Kernes and this blog right heya. When Mark Leno attempted to call out these surveys for their lack of correlation and causation, this merriment ensued:
Martin, however, went on to tout two studies of STDs in the adult industry, one which was published in 2012 (and debunked here) and the other done just one year ago, which AHF touted at a press conference just two weeks ago, and which was much discussed on AVN.com. However, when Leno asked the proponents to respond as to whether those studies indicated correlation or causation, Martin asked Dr. Paula Tavrow of UCLA's Fielding School of Public Health to speak to it—and she dodged the question.

"Two studies were conducted," she said. "One in 2012 was conducted over—in a single clinic over a five-month period that ended I think in August, 2010, and in that study, we found that there was a 28 percent prevalence of chlamydia or gonorrhea among adult film workers, and then there was a second study that was just completed a year ago, in June, 2013, of two clinics and that found that the rate just of gonorrhea and chlamydia was 28 percent among that community of adult film workers."
Actually, for the record, the first study, authored by Dr. Robert Kim-Farley and Dr. Peter Kerndt (he being the one who gleefully backed the condom mandate as a means of forced mentoring of the public on "safer sex"), only quotes "up to one fourth" of porn performers as having contracted either gonorrhea or chlamydia, and then later rounds off those quotes to "between 15 and 25 percent". Not quite 28 percent there.  And, for those of you who missed that blockbusting infographic that AHF blew out when they released the findings of the second "survey", their percentage of performers stricken with either gonorrhea of chlamydia came out to 23.7 percent, rounded up to 24%...off again by four percentage points.

But who cares about such namby-pamby things about facts and controls when there's DEADLY VIRUSES floating around???
But when Leno reiterated that his question was whether the studies showed that adult film performing caused the infections, or simply that they found infections but could not state a cause, Tavrow admitted, "None of these studies can determine how someone acquired a disease," but later added, "The fact that, as Senator Hall was just mentioning, that it's ten times higher among the performers than it is among a comparable LA County population of 20 to 29 year olds does suggest to us that it was due to their work."
Yeah, that's right. Ten times higher. As compared to what control group that you call "comparable"? The ones that test as often as porn performers? You know, like the prison population, where condoms are few and far between? How many "civilians" don't even know they have STI's until they go to a clinic and test themselves when they become sick? Oh..and what about the rate of STI infection inflated by the high impact of HIV/STI's on the gay male community and the gay male porn industry, where condoms are far more the rule than testing, and seromatching is done to attempt to prevent cross-infection...and gay performers and civilians still succumb to the virus every year?? Are you saying, Ms. Tavrow, that only porn performers, not the public at large, engage in "high-risk" sexual acts that leave them more vulnerable to infections? What about other factors like sharing dirty needles during drug use or non-wrapped anal sex leading to tearing and bleeding, which opens up the real risk of blood-to-blood transmission of STI's?

Both Lorelei Lee and Diane Duke were ready for that nonsense, though.
This "suggestion" was refuted soundly by Lorelei Lee, who stated, "The UCLA studies that were mentioned, one factor in those studies is that they were looking at performers who went to West Oak Urgent Care clinic. This is not a testing facility; this is someplace where performers go when they know they have an STI, so if you were to test performers from that clinic, you would get a 100 percent result of performers who have an STI. I have seen what's been published of the study. I have not seen any peer review of the study. I also have not seen it compared to a comparable population. I do not believe that that has happened. I do not believe that there is a comparable population who tests as often as we do, for example."

"I need to point out it is not a published study," Duke added. "It has not been published. There is a poster out about the results, and it was presented at a conference, but it is not a published study. They used two facilities. One was a test facility that was a PASS testing facility; the other was a treatment facility, so it would be like, as Lorelei said, like going to an oncologist's office and saying everybody's got cancer. When you go to a treatment facility, you're going to be surveying people who are being treated, so that's why that is problematic."
The fact that even with all those cooked-up facts, created out of the the thin whiff of raw sewage, they still could find only 25% of adult performers in LA County suffering from either chlamydia or gonnorhea, speaks well about the discipline of the overwhelming majority of adult performers in playing safely, and the effectiveness of the screening system in place. The fact that even with 5 confirmed HIV infections within the last 3 years in the "straight" porn community, none of them have been found to have been caused by on-set action, and -- most importantly -- no other performers have been found to have been infected as a result of any of these acts -- speaks even louder about the effectiveness of the PASS system (and even the system ultimately refined by AIM before AHF targeted them for destruction as part of the condom mandate crusade. (And I won't even mention the inconvenient fact that two of those infections came from gay male condom-only sets. Oh, wait...I just did!!)

Diane Duke also addressed yet another of Izzy Hall's wack memes: the alleged failure of industry moratoriums to prevent the spread of diseases.
Duke also described how moratoriums work in the adult industry, pointing out that they're not done casually, but upon doctors' recommendations. She also seemed to take umbrage with Hall's earlier statement that, "While these moratoriums sound good to the press, they were unenforced and largely ignored by the industry."
Now, during the syphilis scare and dual moratoria of 2013, there were some real grumblings from porn agents and some models/performers about why they had to suffer the loss of income while waiting for nearly a month without pay; and there was one attempt by a porn production company -- namely, Dan Leal's Immoral Productions -- to break the second moratorium and shoot product (with condoms, of course) which ultimately blew up in Leal's grill after performers blasted him back. Also, remember the controversy during the syphilis scare from some performers (Lisa Ann leading the opposition) to being forced to take a syphilis vaccine when not afflicted due to medical complications and the lack of an effective testing regimen for syphilis back then? In any case, the fact that everyone was ultimately cleared confirmed that the moratoriums did do their jobs, though not without some economic pain to those having to pay bills in the internim.

If AHF had their way, of course, there would be no need for moratoria to begin with, because condoms would save both the world and the industry from all those bad STI's, allowing everyone, even those with full blown HIV, chlamydia, gonorrhea, or even HPV, to gambol around and fuck freely. Either that, or softcore simulated porn would come in and save the day....I guess.

As to the other meme that "Condoms are already the LAW, HO-MAAAAYYY!!!" ...
Leno also asked the bill's opponents to comment on whether condoms were actually already required in adult film work?

"Regulation 5193 does not contain the word 'condom'," attorney Karen Tynan noted. "We have trial dates set on this issue on July 9, 10, 15 and 22-24 for two different companies, where ALJs [administrative law judges] employed by the state will be making determinations about the exposure control plan, but it's important to remember that that regulation, which was written in 1994 for healthcare industries, created exposure control plans that require testing that meets the standard of 5193, which says you either eliminate or minimize the hazard. We believe we eliminate or minimize the hazard with that exposure control plan through the testing."
 It should be noted that AHF has already won one case where they insist that condoms are the only true means of protection: the Treasure Island Media ruling where an ALJ upheld an earlier ruling (yet reduced the fine by two-thirds); that ruling is currently under appeal.

All of this was rendered a moot point, when both Senators Mitchell and Committee Chair Ben Huesco both declared in favor of the bill's passage, both citing the need for protection. Mitchell, though, did gently rap AHF for not addressing the plight of HIV+ Black women, whom she called "the hidden face of HIV". Considering that there is no AHF clinic in Izzy Hall's district in Compton, in spite of nearly five new cases of HIV every day, that probably would fall on deaf ears.

And speaking of Izzy Hall....the reverend closed his sales pitch for 1576 with an extra special and heretofor hidden punch to the groin of the industry...using Mr. Marcus' allegedly syphilis infected dick.

"I would just like to say, we had a witness here today, Cameron Bay, who very clearly stated that she tested negative and still had HIV while performing on the set, and you saw articles with Mr. Marcus in Los Angeles who was found guilty of infecting and exposing to a female to syphilis on the set and was fined $130,000 just this week and also served jail time," Hall lied. "She's really a person, she's present and she's telling you what happened. Mr. Marcus is a real person. The LA Times didn't just make up a story. It's the reality of what happens, and it's time that we start putting worker safety in front of profit in California."
Of course, it probably wouldn't even register in Hall's brain that if Cameron Bay was indeed infected on that Kink.com set, it probably was because of her own off-the-set sexual activity (or that of her boyfriend); or that Marcus not only did not infect anyone with syphilis (not even the accuser, Lilith Lavey, went that far as to say she was infected, only that he, through cloaking his positive test for syphilis in the face of unemployment, exposed her needlessly to the possibility of infection), but probably couldn't even have infected her because he had undergone the full treatment for the infection and was thusly unable to infect anyone. Even the jail time served was for a parole violation from a previous offense totally unrelated. (Also...condoms would not have prevented the spread of syphilis in areas not protectable by "barriers".) The LA Times may not have the ability to make up stories, but Isadore Hall, thanks to his benefactors at AHF, sure has perfected that art to a crossed T and a dotted I. And a great big L-I-E.

There was one bright moment for the opponents of 1576, though: Senator Leno declared his opposition to the bill in some of the most powerful and succinct tones possible, and it gives at least some hope if this bill ever reaches the full Senate.
"Some of the concerns that have been raised with regard to protecting the privacy of these actors, apparently overwhelming—I know it's anecdotal—opposition to the bill by those who work in the industry, concerns with regard to mandatory HIV testing, all leave me a little uncertain as to whether this is the right way to go," Leno said. "I would imagine with regard to Mr. Marcus, and I don't know why he wasn't fined more than he was, though someone of his ilk very likely could do what he did again even with this bill as law, and as a gay man who has experienced the HIV epidemic in San Francisco over the past 30, 35 years now, lost my own life partner to it, very close...  Those that I worked with in the community for the past three decades, the organizations that started it in the early '80s and are still foundation stones of our HIV/AIDS community in San Francisco, are not in support of this bill. They've remained publicly silent, though I've had some conversations with any numbers of them—I'll leave the names of the organizations out, but they're both treatment and prevention advocates for treatment groups and they have reservations about this—privacy, mandatory HIV testing, things that they have been on the frontlines for the past many years, so for those reasons, I will not be supporting the bill today."
 Alas, he was alone in his opposition, as Senators Mitchell, Huesco, and ultimately Padilla following a brief break, voted to move AB 1576 forward to the Senate Appropriations Committee. It could face hearing there as early as this coming week. After that, on to the full Senate, and then, if it passes that without amendments to be reconciled with the Assembly, on to Governor Jerry Brown's desk for signature or veto.

As always, we'll keep you updated on its progress or lack therof.


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