Sunday, June 29, 2014

Porn Panic 2014 Update: AB 1576 Passes First California Senate Committee Test, But Not Without Fun And Frivolity (And More AHF BS)

First, the bad news: It's beginning to look more and more like Isadore Hall's bill for mandatory condoms and "barrier protection" and testing and verification, House Bill #AB1576, may stand a chance of passing after all, following its initial clearance throug the California State Senate's Labor and Industrial Relations Committee.

It still has to go through the Appropriations Committee and then pass the full Cali Senate before reaching Governor Jerry Brown's desk for his possible signature; but considering the money the AIDS Healthcare Foundation has to lobby legislators, and the apparent total dismissal of the concerns of porn performers and producers against the bill due to the latest sex panics, it's a lot closer to passage than could ever be conceived even a month ago.

I wish that I could be less pessimistic about the outcome, but from what I saw and heard about the Labor Committee hearing on the bill that took place on Wednesday, it's not looking so good. Not even the articulate arguments of performer Lorelei Lee or Free Speech Coalition CEO Diane Duke could outdo the razzle-dazzle, presto-changeo, minstrel show clown act that Izzy Hall and AHF brought to the committee. This wasn't just a doubling down of propaganda and bullshit; this was a raising of two magnitudes of the usual AHF talking points, driven to new heights of hot, runny stinky garbage.

I'm using Mark Kernes' review of the committee hearing over at AVN as my template for commentary, since that's all we have right now.

First off, Izzy Hall kicked off the comedy act with his usual bait-and-switch.
For example, the first words out of Assemblymember Isadore Hall III's mouth as he attempted to explain the bill to the committee were, "AB 1576 is a workplace safety measure that would require employer-paid mandatory STD testing of adult film actors at least every 14 days, and use of a condom or other protective equipment in all adult films produced in California." Indeed, Hall wasn't the only one who's changed direction and called this primarily a mandatory testing bill rather than a mandatory "condom or other protective equipment" bill—and it should be noted that Hall referred to "other protective equipment" at least three times during the hour-long session.
This is particularly hilarious because previously Hall and his AHF cronies have effectively denied repeatedly that any part of this bill, or any of the proposed changes in "bloodborne pathogen"/"sexually transmitable bodily fluid" regulations by CalOSHA, would involve anything other than mandated condoms. Not face shields or goggles or dental dams or any other form of personal protective equipment required for industrial use...only condoms would be required. Riiiiiight. Never mind that the proposed CalOSHA regulations would not only force "barrier protection" for anal/oral sex, but would also ban even external ejaculation over any areas (face, vaginal, anal) where the possibility of "transmission" could occur, as well as any internal ejaculation in the vagina or booty not wrapped up.

Also...the newly formed respect for testing flies in the face of previous testimonials by AHF President Michael Weinstein stating that testing by itself is a fundamental failure and that with condoms, testing becomes a moot point. The previous attempts at mandating condoms did not even mention testing at all.
Hall also declared, "In 2013 alone, there were up to five documented cases of HIV transmission of adult film actors," even though, as activist/performer Lorelei Lee and Free Speech Coalition CEO Diane Duke later noted, it has been proven that such transmissions did not take place on any adult movie set.
Yeah, five cases. Of which, three were confirmed cases of HIV caught by the PASS system (Cameron Bay, "Performer #3", and an unnamed gay male condom-only performer); the other was Rod Daily (Cam Bay's boyfriend, who managed to skip the PASS system right when he got infected and became, like Bay, AHF's paid missionary for the condom mandate); and the fifth turned out to be a false positive. Not to mention, no other performer who worked with Bay or Daily in any straight shoot turned up HIV+ either during or since they (Bay/Daily/P#3) tested positive for HIV.
Hall also claimed, as he did before the Assembly Appropriations Committee, "For all the talk that the industry will flee to Nevada, Nevada is already clear on its regulation of sex work. Sex work is not legal in Las Vegas. The counties that do allow sex work, condom use is mandatory, period. This is in addition to the fact that only two states in the U.S. allow for the legal production of adult film; that's California and New Hampshire. The adult industry's home is and will be in California. The fact is that the industry isn't going anywhere, and frankly, I don't them to go anywhere but in California, where they employ thousands of Californians, generating millions of dollars in tax revenues."
Doesn't matter that adult film acting is not considered "sex work" under either California or Nevada law, and that as Duke later noted, "A $30 million company from the Valley moved out of state earlier this year, and is happily working in Las Vegas, where they have welcomed us with open arms. They want the jobs, they want the ancillary jobs that come with this industry."
 The general gist of Hall's rant here is that the adult industry needs Cali more than Cali needs them, and that if they know what's good for them, they will just knuckle under and accept the condom mandate like good little menschs. Problem is, brothels aren't the only place to film porn; people can still use their smartphones and PC's/laptops to produce porn at home and bypass the regs, and porn can be made outside of even the US. Also..in Nevada brothels, condom usage is imposed on the clients of brothel prostitutes, not the prostitutes themselves. Plus, the opposite of "legally protected through legal precedent" is NOT "illegal"; there simply hasn't been a case like the Freeman case that has been tried as a template to determine the legality of porn as free speech expression.

Next up in the Clown Show was AHF legal counsel Rand Martin with a variation of the same-old same-old.

Rand Martin of AIDS Healthcare Foundation apparently sought to derail some of the opponents' arguments by claiming that condoms are already mandatory in California under CalOSHA regulations (even though nowhere in those regulations does the word "condom" appear); that the testing protocols in the bill are superior to those currently used by the industry (except that the bill mandates the CDC-recommended antibody test for HIV while the industry uses the far-more-accurate PCR-RNA test); and that performers' medical information won't be exposed to employers or government employees (although the bill clearly states that employers are required to certify that "the employee consented to disclosing to the Division of Occupational Safety and Health that the employee was the subject of a human immunodeficiency virus (HIV) test," and how would they know that without some sort of access ot the test results themselves?
Yeah...."superior". Because a 24 hour swab using an ELISA antibody test that has a 3-6 month latency period is far superior to the Aptima test with a 6-10 day latency period, backed up by Western Blot and three Elisa analyses tests, right? And, condoms never tear or break, of course. And....lots and lots and lots of lube.

And this nonsense that the documentation of adherence to testing and condom usage won't fall into government (or AHF) hands for misuse or abuse? Why require such things to begin with if you don't want "government employees" to have such information? And, once that info is gathered, what's to prevent it from being sold and channeled to private sources for either blackmail or propaganda or spamming purposes? Remember, it was 2257 info that was used to out Desi Foxx and for the original Porn Wikileaks (D****y L**g's version, NOT the modernized current version run by Sean Tompkins). Is there anything preventing, say, a Gail Dines or Shelley Lubben peep from attempting a FOIA action to reveal the medical records (and real names) of a performer whom is documented under this bill, and using it for nefarious means?
Martin also claimed performers shouldn't be allowed to make their own decisions about whether to use condoms (and, one assumes, the "other protective equipment") themselves much as, "We don't let construction workers decide whether they're going to wear hardhats. We do not let welders decide whether they're going to wear goggles. We do not let doctors and nurses decide whether they're going to wear gloves in the operating room." But as Lorelei Lee pointed out later, in discussing vaginal chafing, or "condom rash" as it's called, which can cause micro-tears in the vagina which in turn cause an "increased risk of STI's," "Construction workers are not often harmed by their hardhats."
Of course, wearing hardhats at construction sites and goggles during welding and gloves during surgeries to protect against injury is a bit different from engaging in sex for long periods of time. People have been doing that for millenia without acquiring any STI's at all. In fact, the overwhelming majority of performers have been free and clear of disease and infection for themselves....mostly thanks to their own discipline in selection of on-screen partners and their own personal care in protecting themselves, and also thanks to the PASS screening system that AHF and Izzy Hall want to simply obliterate, all their bloviating aside.

But, that was only a prelude to the pathos of their chief victim/witness, Ms. Cameron Bay herself. And she executed her role perfectly, even adding an extra dose of conspiracy never before heard of.

"I was an adult performer last year between May and August," she stated to the committee. "July 31 was my last shoot. I got a job working for Kink.com as an adult—which is an adult film studio in San Francisco, and I was tested for STDs and I was available for work. When I got there, there was up to about 75 extras on set and none of them were tested. During filming, the main performer I worked with had cut his penis and then was bleeding. They stopped shooting the scene to clean up the blood. I wanted to use a replacement, and there was a replacement there on set, but they chose not to because they could not pay the performer, so in turn, I had to continue working with the injured performer and we did not use a condom. They did not have an effective exposure control plan and I had to carry on the scene without any protection at all. If I had asked for a condom, another performer could have replaced me or would have replaced me. I would not have been paid and I would have had to pay my fee to my agent, which means I would have been out of pocket close to $400 out of a payment that I never would have received."
Now, there is plenty of sympathy and empathy in me for Ms. Bay, who is indeed going through the crucible of a life-changing drama which will affect her for the rest of her life. Problem is, her story has more than a few, shall we say, issues with stated facts. Like: the known fact that it was her who bit into and ultimately bloodied Xander Corvis' penis, causing the stoppage. Or, the known and proven fact that neither he nor any other hetero performer (other than Bay and Rod Daily) who did that Kink.com shoot has tested positive for HIV either then or since. Or, also, the testimonial from other sources at that shoot who specifically stated that when the performance was halted, Bay was given the options of continuing the shoot both with and without a condom, or even having boyfriend Daily step in to finish the shoot, but chose to continue on as before, thinking that she would be OK.

Cam Bay's revelation that she would be removed if she didn't finish the shoot without the condom is a new charge that she never pushed in her previous testimonials...and it would violate Kink.com's protocols in their basic Model Rights, which explicitly states that once a performer is under contract and performs in their scenes, they are entitled to full pay even if they bail out of a scene due to any concern of injury.

But that wasn't the only bomb Cam dropped at that hearing:

Somewhat chilling was Bay's statement, "I could have continued working that whole week that I found out I was HIV positive, because my test said that I was still good to go in the PASS system. I still had a checkmark next to my name stating that I was cleared to work, and I could have infected a lot of people because I was in my most infectious state at that time. I followed the adult film industry's self-regulations and I stand here before you today HIV-positive."

Aside from Bay's repeated implication that she contracted her HIV on set, her statement taken at face value would suggest that she was not tested by an industry testing service because she would then have been mareked as "unavailable" in the PASS system. However, no matter where the test would have been taken, an HIV-positive result would have prevented her from working. [Emphasis added by me.] What she likely meant to communicate, though, was that there was a period of time (she characterizes it as a week) during which she was positive with the virus but had not yet been detected via a test, and it is her contention that she could have worked that week and unknowingly exposed others.*
Remember that Bay's positive HIV test was confirmed on August 21th using the PASS system; and her last clean test was on July 27th, also using PASS. Also remember that the minute a test shows "reactive", a performer immediately goes off the clear list database and is informed and referred for followup testing. The infamous Kink.com shoot was done on August 31st, four days after Bay was cleared for shooting. The Aptima test can detect traces of the HIV virus in a person's RNA basically within the first 6 to 10 days of serotransmission. That would mean that if Bay was initially tested on or around August 14th - 17th, the latest that the test would be able to find transmission would be August 4th. Also, based on the 14-day testing schedule enforced by PASS, Bay would have to have been retested no later than August 14th. It may be that Bay used a private doctor that was not part of the PASS system for her initial diagnosis before it was verified on the 21st, but there was no indication of that publically by her or anyone else....other than a series of suggestive tweets she posted to her Twitter account on September 3rd.

Now, it is functionally true that with 14-day testing, there is a small window where an infected performer could possibly work without his/her infection being detected until the next series of tests, thusly threatening other performers. However, the counter to that is that most reputable porn production companies insist on 2-3 day old clean tests in addition to clearance from the PASS database prior to hiring someone for shooting, and some performers require even stronger standards than that before they shoot scenes. Between that and the exercise of off-the-clock discipline and selectivity in sexual partners/sexual acts, this greatly reduces if not eliminates the risk of infection; and the cases where all infections since the Darren James episode of 2004 have been found to be off set with no other performers striken verifies that fact.

It should also be known that female-to-male HIV transmission outside of direct blood-to-blood contact is very rare in real life, let alone in the porn industry. The only possible scenarios even plausible would be that either: 1) Cam Bay (or more likely Rod Daily) was already infected by the time they did that Kink.com shoot, but somehow miraculously managed not to infect Xander Corvus....although given the short time frame between her last clean test and that shoot, that would be a statistical impossibility; or 2) Cam Bay was infected off the clock either right at the time of or soon after that shoot, most likely either by her boyfriend Rod Daily or through some other extracurricular activity she or he had. That would put to serious question whether her current "I am a victim" testimony (and that of Daily as well) is simply bending her (and his) experiences to fit the template of the condom mandate talking points in exchange AHF paying for her treatment (and, allegedly, other perks and goodies).

The rest of the pro-1576 testimony was anticlimatic, with nine persons speaking in favor....but one of those people raises some intrigue.
After the testimony by Hall, Martin and Bay, nine people registered their support for the bill, including one Sofia Delgado, who said she was HIV-positive and also implied that she had contracted it on a set—even though she has appeared in a grand total of two adult movies, both all-girl, and two solo scenes for SexuallyBroken.com.
My initial impresion upon reading this was that this could potentially be "Performer #3", the female performer that was confirmed on September 3rd to be HIV+; however, according to the expose done by TRPWL, that performer had done a boy-girl scene prior to the calamity of testing positive. However, there is that perfomer in 2012 that was a confirmed positive test using the original APHSS (the predecessor to PASS) system. Unfortunately, Mr. Kernes gives no followup info about whether Ms. Delgado tested using PASS/APHSS, or whether her claims of getting infected with HIV on set can even be verified.  Then again, AHF isn't known for their vetting of their advocates, as Derrick Burts can clearly attest.

 After that, the opposition, in the form of Lorelei Lee and Diane Duke, backed by a written petition signed by nearly 600 other performers and the physical testimony of 20 others, got their chance to shine. For reasons of space and out of respect for Mark Kernes' excellent journalism, I'll simply refer you to his article for the testimonials.

The next series of fireworks came with the questions from the committee members...and the answers were as awe inspiring as ever....in the same way a multi-train wreck is awe inspiring. I'll get to that in Part 2 of this essay, anon.

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