Porn Panic 2011 (The Endless Loop Contionues): AHF, Apparently Not Happy With The Grinding Wheels of Process, Takes Its Case ForThe Condom Mandate To The LA Streets Via Initiative

Michael Weinstein much be hard on cash again...because apparently he's not bothering to wait for Cal/OSHA to do the dirty work of forcing condoms down the throats of porn performers in LA.

Today, Weinstein and his AIDS Healthcare Foundation groupies gathered at the Sheraton Hotel to announce that they were going to initiate a signature drive to put to the voters of the City of Los Angeles an initiative for a proposed ordinance that would force city officials to impose the condom mandate as a requirement for approval of production of porn in that jurisdiction. The goal would be to place the proposed ordinance on the ballot before the people of LA by June of next year.

The  press release announcing this initiative cited all the usual AHF talking points about how adult performers were protected less than mainstream TV actors (ignoring the basic fact that most mainstream actors don't engage in active sex on screen (except, maybe, in casting couches, and that would probably not be covered by condom regs), that there is a pandemic of STD's, including HIV, afoot within the porn industry that is so out of control that outside intervention is needed (conveniently ignoring AHF's own role in toppling the one organization that had been the most effective in controlling STD's--namely the AIM Medical Foundation), and that all they are doing is asking the city to enforce existing law, which they say already mandates condom usage.

The actual press conference, on the other hand, was more than just the usual antics and showboating...though there was plenty of that. Mark Kernes of AVN.com did a decent report on the presser, and I will quote freely from his accounts, which you can see here.

All the usual suspects were there to testify. Mike Weinstein kicked it off:

"We're here today to announce the launching of an initiative campaign before the voters of the city of Los Angeles, to require as a condition of permitting, that adult films follow the law....[w]e protect all other workers in every other industry and minimize their risk....[w]e protect performers in Hollywood films, stunt people and actors, from injury. We even protect animals from being harmed in the making of films, and yet we do not protect the performers in this industry."

Really?? You mean that stunt people are required to wear helmets and goggles and protective gear every time they do a stumt?? Are they also requited to wear PPE (personal protective gear) to prevent themselves from tainted blood?? Are MMA athletes required to wear gloves, dental dams, and googles in order to prevent them from getting infected from blood, too??

And...surely Mike Weinstein already knows that performers are already capable of protecting themselves, and many of them already use condoms as one line of defense along with testing and peer pressure and selective use of partners in shooting porn scenes, does he??

Quite naturally, Weinstein then proceeds to throw his local allies at the Los Angeles County Department of Public Health under his big, shiny bus..never mind the hard work of folks there  like Peter Kerndt and Robert Kim-Fairley to cook the stats on STD transmission to his favor. And, he minces no words either towards the LA City Attorney's office, who stoned his efforts earlier to force the local film regulatory agency FilmLA to impose the condom mandate on approval of film shoots in LA. (The quote is from the Kernes AVN article.)

"Then you come down to the county level, which is responsible for public health and stopping the spread of disease; they've been a no-show," Weinstein claimed. "We've gone to them many times and they have refused to act and they've punted it to the state. At the level of the state legislature, we have not been able to get any member to sponsor legislation to strengthen these provisions. And then we come down to the city. Since most of the films are made in the city of Los Angeles, the city of Los Angeles has jurisdiction over zoning, and as such the issuing of permits. There are about 200 permits a month that are issued to the adult film industry, and we simply want a condition of the issuing of those permits to be that they follow the health and safety laws. We have not been able to get the city council to enact this."

This is what you call "progressive lying through your damn teeth."....because the LA City Attorney's office had already issued its own legal counsel ruling that they had no jurisdiction over FilmLA to require condoms as a mandate for approving film permits; the Cali State Assembly already had a proposed bill in place -- Senate Bill  459 -- that would have modified the designation of "independent contractors" as opposed to "employees" in order to make it easier for Cal/OSHA to enforce the condom mandate through stiffer fines and arbitrary reporting guidelines, and, of course, the proposed changes in the Cal/OSHA regulations are still in the process of being tweaked for final review and approval. But, it's all LA County's fault that Weinstein can't impose condoms on porn shoots, or gain full control of the testing and protection" of porn performers. Tiny violins were crying in the background, I suppose,

But that was just the beginning of the fun and games, for Weinstein and his AHF legal henchman Brian Chase (who actually created the proposed ordinance), brought the full three-ring circus act to supplement their case.

Which brings us right back to...Ministeress Shelley Lubben and her Pink Cross Foundation League of Ex-Porn Sluts For Jesus.

Yup, never mind the irony of an antigay fundamentalist Christian who openly boasts of the magical powers of her Lord and Savior rescuing gays from their sins working with an organization formed to protect the rights of HIV+ perfomers, the majority of which just so happen to be gay. Where there's a camera, and an opportunity to get pub, you know that Shelley will be there. Probably with the ink from Ron Jeremy's signature still not drying off her tits yet, too. Or, the memories of her rediscovering her old stripper moves at same party being still fresh in her mind.

Here's Lubben's contribution to the AHF press release:

“I was a porn star living the glamorous life. Drug overdoses, herpes, suicide attempts and abuse at the hands of the porn industry,” said Shelley Lubben, former porn actress and founder and president of the Pink Cross Foundation, an IRS approved 501(c)(3) public charity dedicated to offering adult industry workers emotional, financial and transitional support for those who want out of the adult industry. “In my time in the industry, I did some very hardcore movies, and only drugs and alcohol could get me through them. I played a crazy game of Russian roulette with my life. The industry did not and still does NOT enforce condom usage, so STDs and HIV were and still are a high risk among porn actors and actresses. While my own life has taken an entirely new and profoundly fulfilling direction and I now work to help performers leave the industry altogether, I wholeheartedly support this ballot initiative that would allow Los Angeles residents and voters to weigh in on tying film permits to condom use in the ongoing production of adult films in California.”

How that jibes with Shelley's repeated claims that she is intent on "destroying the porn industry" is not so made abundantly clear. Also not clear: the disjoint between all this tragic tale of how the porn industry did all this bad to her, and her own spoken and written testimony that her herpes (which she still can't or won't give proof that she had, other than the assertion that "God cured me" of them) or her other ailments, were more the byproduct of her 5 years as a working street prostitute/escort prior to her even starting to make porn films in 1993, or the basic (il)logic of how her 17 credited films makes her the go-to expert on how female porn performers are treated...even though she hasn't made a video of a film in nearly 18 years.

But hey...with Jesus at your side, anything is possible.

I'll just leave it to Michael Whiteacre to address the other points about Shelley's "asistance".

Speaking thereof...Lubben brought with her two of her prized assistants from the PCF: Jan Meza-Merritt and Jenni Case, to reinforce the case against the "porn industry" for its lack of protecting female performers.   Meza-Merritt was particularly strong with the proper "pathos" (again, from the AHF press release):.

“I was brutalized, traumatized and victimized for a buck by an industry that could care less if I lived or died. I contracted Chlamydia and herpes, which is a non curable STD from my time in the porn industry. The porn industry collectively employs thousands of male and female porn actresses monthly. How much higher then is the risk of getting HIV and other STD’s in a transient industry where you have not only one sexual partner per day, but several or more and condoms are looked at as an unnecessary, negative component of this industry?,” said Jan (Meza) Merritt, former porn actress and member of the Pink Cross Foundation. “Enough is enough! How many more HIV incidents must occur in the adult industry before changes are made once and for all? I fully support the ‘City of Los Angeles Safer Sex In The Adult Film Industry Act’ that will allow Los Angeles voters to weigh in on the safety of those individuals who remain working in the porn industry.”

The "City of Los Angeles Safer Sex In The Adult Film Industry Act"?!?!? What...they couldn't have entitled their initiative with something shorter...like, "The Lara Roxxx-Darren James Adult Industry Protection Act"???

But even Ministress Lubben and her acolytes weren't considered sufficient enough for Weinstein, because for the coup'd grace, he brought out of retirement none other than Darren James himself...the original "Patient Zero" of the 2004 outbreak.

James, now on the AHF payroll after nearly 9 years of hiding, testified at the presser about how he "had predicted another HIV outbreak" to occur "because of this same thing", and he inferred that the industry "is not being policed properly." Of course, no one bothered to ask Darren how in the hell he got himself infected to begin with -- most sources say that he was infected in Brazil shooting a bareback scene with a transgendered actor, and there are also concerns that Lara Roxxx might have been infected, too, prior to their scene as well.

And for more recent support, Derrick Burts (aka Cameron Reid) was also recruited to sell the AHF line, and to promote the crossover gay male pro-condom perspective. Burts, of course, was "Patient Zero" for the last "outbreak" in 2010, who first went to AIM-MED for help, then, claiming that he was dissed, crossed over to AHF. At the presser, he was simply off the chain.

[...] Burts charged that, "The porn industry likes to think that they're above the law," claimed that  "performers, especially female performers, are afraid to speak up... They're very belittled in this industry. I've gone to several shoots where the females are just treated horribly," that "If you ask a performer off-record, would you like your male performer to wear a condom, I bet you at least 98 percent of them would say yes";  and further claimed that, "LA County has since then confirmed that I worked with not one but two HIV-positive performers"—not surprising since his primary work was in gay porn. (Quoted from the Kernes AVN,com article)

Never mind again the fact that most performers who request a condom in their scenes are enabled to use them, but many others, like Nina Hartley, prefer not to use them due to personal concerns about micro-tearing of vaginal tissue increasing the risk for more infections, or the personal feel of rubber, or simply because they feel that they are perfectly capable of protecting themselves against STD's without the heavy hand of bureaucrats looking down their blouses or up their skirts.

And...it would kind of upset the apple cart to note that Burts himself has testified that he was infected on a gay  male shoot...in a condomized scene, where he claims the other participant
took off the condom at the end and blew off into his...well, anal orfice, thusly infecting him.

Remember, Clones...gay male porn has its own separate standards for STI control (more reliance on condoms due to the much greater prevalence of HIV+ performers there) as compared to the hetero porn industry (which relies on testing and peer pressure as their firewall against HIV and other common STD's)..

And, that may be the point of Weinstein's antics, I think...other than the desire to get the government grants and use them, along with the condom manufacturers, to seriously get paid. Perhaps AHF and Weinstein really want to create a protection racket for crossover gay/bi male performers wanting to make money off the existing industry...and mandating condoms along with reviving the older ERISA tests for STI's, in combination with existing standards against discrimination of HIV+ performers, would produce a permanent income flow from folk like Burts/Reid.

Of course, the cost of that in weakening the preexisting standards of the testing firewalls (now reinforced through the new AHPSS standards and the more modern PCR-DNA tests standardized through AIM-MED and now through AHPSS), not to mention the economic costs from the rejection of a porn consuming public that has spoken loud and clear with their dollars that they like their porn unwrapped and bareback, regardless of whatever good social intentions may exist.

Anyways..you can't have a proper initiative without a neat-o, catchy organization, and AHF has solved that issue by forming -- you'll love this -- "For Adult Industry Responsibility", who will oversee this effort. Gee..I wonder how Fairness and Accuracy in Reporting will react when they find out that their acronym is being pilfered this way?? If it's anything like the World Wildlife Foundation's fierce reaction (and ultimate win in the courts) over the former World Wrestling Federation's use  of "WWF", I don't think that this will be pretty.

One other thing about the proposed ordinance you should know about: while the proposed Cal/OSHA regulation changes would mandate all kinds of barrier protections, including not only condoms but also gloves, dental dams, goggles, and other forms of "protection", during the shooting of porn sex scenes, the proposed AHF ordinance only requires the condom mandate. Weinstein had a...well, particular reaction at the presser when noted of that little conflict:

Moreover, when asked about the disparity between his initiative's call for universal condom use, and the fact that the Health Code refers to "barrier protection," which would also include dental dams, latex gloves, goggles and face shields during hardcore scenes, Weinstein simply responded, "You've been peddling this 'goggles' line in every article... If that makes you happy, go for it. That has never been our position; it isn't our position now; it isn't the position of CalOSHA."

So much for "follow[ing] the health and safety laws"!

So...never mind that Cal/OSHA's own regulations for "employees" directly mandate all forms of "barrier protections", and that AHF had no opposition whatsoever to adding such protections to the proposed regulations for porn shoots....all of a sudden, only condoms are needed?? Nice job, Mike, for revealing what it was all about in the first place.

Porn Panic 2011 Redux: FSC Unleashes APHSS System For Testing, Protection Of Porn Performers; But AHF/Cal-OSHA Continue Condom Mandate Plans Anyway (UPDATED)

Updated below....scroll to bottom.

It's been a while since I last updated you on the Porn Protection Wars....so here's here's the latest.

First, the AIDS Healthcare Foundation, not completely satisfied with its efforts with Cal-OSHA to impose the condom mandate through workplace regulations, decided to attempt to strike at another angle from which it had been supposedly denied: the use of leveraging approval film permits for shooting porn scenes by the local Los Angeles Film Board.

You will recall that that particular body had been compelled via a request from the LA City Council to report on whether the board could force the condom mandate as a requirement for the Film Board's approval to shoot porn scenes in Los Angeles County and the incorporated citiy of LA. The LA County Attorney's office had filed a report concluding that the film board didn't have that authority.

Well...you know that Michael Weinstein, the head of AHF, is not too well known for taking defeat with grace and gratitude... so, it's not surprising that he would seek a second opinion on the matter. And glory be, he seems to think he's found one...from none other than his colluding associates at the LA County Department of Public Health Cal-OSHA, which has been the OTHER agency attempting to push the condom mandate on the industry in LA.

Here's some snippage from the press release from AHF, as reposted to LukeIsBack.com:

Opinion by Cal OSHA legal counsel contradicts Los Angeles City Attorney’s March 2011 report claiming the City does not have authority to condition issuance of adult film permits to condom use

In its evaluation, Cal OSHA counsel noted, “…State law does not preempt such action by the City because the City does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment) within the city boundaries.”

LOS ANGELES–(BUSINESS WIRE)–In response to a push by AIDS Healthcare Foundation (AHF) to compel the City of Los Angeles to tie the issuance of its adult film permits to condom use in adult film productions, a recent opinion letter by Cal/OSHA’s (California’s Department of Industrial Relations, Division of Occupational Safety and Health) legal counsel sharply contradicts a March 2011 report in which the Los Angeles City Attorney’s office claimed it did not have the authority to condition issuance of adult film permits to condom use.

“Presently it (Cal OSHA) mandates that all employees exposed to blood borne pathogens wear protective barriers, which includes the use of condoms. CAL-OSHA has been responsive to complaints and has several open investigations, including production companies affiliated with Larry Flynt Publications and Playboy.”
In the initial City report, dated March 22, 2011 titled, “Mechanisms Necessary to Enable the City’s Film Permit Process to Require Workplace Safety in the Production of All Adult Films,’ Kimberly Miera, Deputy City Attorney, City of Los Angeles, on behalf of City Attorney Carmen A. Trutanich, wrote:

“It is the opinion of this Office (City Attorney, City of Los Angeles) that the current permit language covers the use of condoms on all permitted adult film sets to the extent that the City may legally do so. Based on the current permit language, along with the jurisdictional concerns in regulating workplace safety issues, our Office recommends the permit language remains unchanged and this report be noted and filed.”

However, in a researched opinion letter dated July 20th titled, ‘Position of the California Division of Occupational Safety and Health Concerning Possible Conditions on the City’s Film Permits Issued to Adult Film Producers,’ written in response to the City Attorney’s March report and addressed and sent to ‘the Honorable City Council, City of Los Angeles,’ James D. Clark, Staff Counsel for California’s Department of Industrial Relations, Division of Occupational Safety and Health, Legal Unit, Southern California, wrote:

“It is the Division’s (of Occupational Safety and Health) position that State law does not preempt such action by the City because the City does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment relationship) within the City boundaries.

“Cal OSHA and Mr. Clark have provided a very clear and compelling case as to why the City of Los Angeles can condition the issuing of film permits to adult film producers based upon compliance with condom use in their film productions, as currently required under state statute,” said Michael Weinstein, President of AIDS Healthcare Foundation. “Ordinarily, state agencies are given deference by cities and local bodies in situations such as this, and we ask the Los Angeles City Council to do so in this matter in order to better protect workers and performers working in the adult film industry here in Los Angeles.”


In her March report to City Council, Deputy City Attorney Miera also confirmed that condom use in adult film production in the state is required, writing,

“Presently it (Cal OSHA) mandates that all employees exposed to blood borne pathogens wear protective barriers, which includes the use of condoms. CAL-OSHA has been responsive to complaints and has several open investigations, including production companies affiliated with Larry Flynt Publications and Playboy.”

 The latter refers to a case that was filed against Larry Flynt Productions and Playboy on behalf of AHF, which resulted in fines imposed on the two companies for allegedly not using the proper protective measures for their performers.

Of course, the problem with all this is that the LA County Attorney's opinion is the word of law, while Cal-OSHA's and AHF's opinions are just subjective....and I'm just wondering whether or not AHF is willing to risk a legal challenge to the local office just to force the condom mandate on the Film Board. Or, are they simply awaiting the final appeal on that other case involving the LA County Department of Public Health's supposed lack of fervor in forcing condoms down performers' throats??

AVN.com columnist Mark Kernes found some other flaws in AHF's arguments, too.

Of course, AHF focused on Clark's stated "conclusion": "It is the Division's position that State law does not preempt such action by the City [in requiring condoms, etc.] because the City does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment realtionship) within the City boundaries."

But indeed, Clark makes it clear that Cal/OSHA only has power of employer/employee situations—an issue that has been hotly contested before the Cal/OSHA Standards Board's subcommittee on performer health which has held several meetings over the past year.

"The Division has jurisdiction over 'places of employment,'" Clark wrote. "It has no jurisdiction unless an employer-employee relationship exists. ... The Labor Code and Title 8 CCR also set forth the means by which the Division is to exercise its authority to assure employee safety. The system for asserting its authority is, generally, by issuing citations that include administrative penalties for violating one or more of the Title's workplace safety standards."

Indeed, that's something CalOSHA has done a dozen times to adult producers since 2004, though four of those cases (including one against AIM) remain under appeal.

But according to Clark, nothing in CalOSHA's regulations prohibit the city from dealing with what it may perceive as violations of occupational health and safety regulations.

"It is clear that the only matter that the Legislature has put in the hands solely of the Division is the 'enforcement of occupational safety and health standards adopted by the [Standards] [B]oard'," Clark stated. "By clear implication, localities may adopt and enforce their own standards as long as that adoption is within the localities' police powers. This is true even if the local standards could be construed as 'occupational safety and health standards.'"

AHF, of course, was overjoyed with Clark's opinion—even as it continues to repeat misinformation about the infection rates and number of infectees in the industry.

"Cal/OSHA and Mr. Clark have provided a very clear and compelling case as to why the City of Los Angeles can condition the issuing of film permits to adult film producers based upon compliance with condom use in their film productions, as currently required under state statute," said AHF president Michael Weinstein said in a press release. "Ordinarily, state agencies are given deference by cities and local bodies in situations such as this, and we ask the Los Angeles City Council to do so in this matter in order to better protect workers and performers working in the adult film industry here in Los Angeles."

However, as things stand now, FilmL.A.'s website gives no indication that permits are conditioned upon complying with any particular laws or regulations. It merely requires that the company obtain liability insurance, which may be increased if the action being filmed includes "exceptional activities"—but having sex on camera isn't one of them. The permitting process also includes the possibility that a FilmLA Monitor may be assigned to the production "in areas that have Special Filming Conditions in place," which are generally "many of the most popularly filmed neighborhoods in Los Angeles."

The next two graphs by Kernes spell out the real risks in AHF's actions.

But what many may not remember is that adult companies have been applying for and receiving filming permits for less than 20 years. Prior to that, the usual practice was for the cast and crew to meet up at an agreed-upon location, then caravan to wherever the movie was to be shot, often in some out-of-the-way, little-traveled place where they would be unlikely to be observed.

If the LA City Council, the LADPH and/or FilmL.A. makes it impossible for adult producers to make movies that will sell—i.e., through rules that require condoms, dental dams, rubber gloves and face shields for all sexual acts—the possibility exists that many of the companies will go back to the "old way" doing doing things—and few in the industry want that to happen, since to do so would likely even further compromise the health and safety of the very performers AHF claims it wants to protect.

 Another way in which good intentions unfettered by common sense lead to bad outcomes.

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On the other hand, the other news couldn't come at a better time for performers waiting for a replacement to the system that AIM had in place. The Free Speech Coalition last week finally unveiled their highly vaunted performer testing and health information system for performers and producers alike.

The program is called APHSS, for Adult Performer Health and Safety Services, and it includes not only a secure database that would protect sensitive information about performers without dealing with medical data, but would also provide comprehensive STI testing through various vendors (or through personal doctors) at a yearly fee that would be affordable to all.

Joanne Cachapero, Membership Director over at the FSC, gave a brief description of how the APHSS system and database would work, and how it improves on the pioneering work of AIM.

Performers, agents and producers can go to www.APHSS.org and click “sign-up” to be led through a simple registration process. Other information that is available at the website includes links to testing facilities, FAQs and contact information. Users are encouraged to view the FAQs on the website.
As with any new system, users should be aware of small glitches. When signing up, users should receive a confirmation email, but some have indicated that the emails went to their spam folders; please, check there if you sign-up and don’t receive an email. For any questions or if you need assistance in accessing your account, please contact [email address redacted to protect privacy].

“We’re starting from scratch with this database so we really need the support of performers and producers to get signed up. We already have the support of major industry producers including Wicked, Vivid, Hustler, Adam & Eve, Kink.com, Girlfriends Films, Pink Visual and Manwin producers, and we appreciate their recognition of the need for this resource. We will be working closely with the LATATA Organization and industry talent agents, to make sure to have their input for the program. We also want people to know they can contact us if they need assistance with any issues.

“Once we have the database populated, and as performers use APHSS.org testing facilities, data will be updated and users will be able to verify work availability on the site; this will take some amount of time, before the database is populated with information, as people start to use it. If anyone encounters any questions or issues, they can contact me directly. We also will have a Twitter feed @YourAPHSS,” Cachapero explained.

For two months, APHSS.org will be accessible free-of-charge, in order to give users a chance to get used to the new format and for the database to become fully populated. After the initial period is over, performers will be charged an yearly fee of $50, and producers will be charged monthly, to use the database. Funds from those fees will go to expenses for APHSS program and website operations. Eventually, APHSS.org also will add educational resources for users, to keep industry members up-to-date on health & safety-related information.

While some have questioned the safety of the database and whether or not sensitive medical information will or won't be included, Ms. Cachapero has assured everyone that medical data will NOT be included in the database at all, and that other steps will be taken to insure the security of the information that will be included, so that no Donny Long/Pornwikileaks shenanigans ever happen again.

In addition, APHSS has announced the formation of its advisory committee who will oversee and monitor the operations of the system and database, with representation from performers and producers alike. As this article posted at FSC's blog shows, they include some heavyweight names indeed.

The performer representatives are Jessica Drake, Bobbi Starr, Danny Wylde and Steve Cruz. Producer representatives are Dan O’Connell (Girlfriends Films) and Steven Scarborough (Hot House Entertainment). Performer Nina Hartley will serve as Educational Advisor, and attorney Karen Tynan has been appointed as Legal Advisor.

The appointees have agreed to a six-month term, as the APHSS.org program is launched and in its initial stages. The responsibilities of committee members are to provide insight and feedback on policies and operation of the APHSS.org. They also will help develop resources for the program to benefit performers and producers.

And, the organization has been hard at work informing the public as well. ABC's Good Morning America website on Thursday featured a surprisingly balanced and non-panicky (at least, for ABC) article on the formation of APHSS, quoting freely from many representatives (and the prerequisite contrary opposition from Mike Weinstein of AHF, of course)  Nina's contribution to the article is worth snipping:

For Nina Hartley, condoms make on-set sex uncomfortable and, she argues, more dangerous. But off-set it's a different story.

"I would say it's different in a civilian population," said Hartley, a performer of 27 years with a degree in nursing. "But public health is not served by forcing a small group of professionals to use condoms instead of being tested."

To those who say pornography without condoms promotes unsafe sex, Hartley has strong words.

"It's not the job of adult entertainers to be educating people about safe sex practices," she said, adding that the "ignorance-based abstinence-only model of sexual education" does little to promote safe sex either.

"People say cartoons promote bad behavior, and Hollywood movies promote unsafe driving. But this is pure entertainment," said Hartley. "We don't ask other entertainers in our culture to slip in the vegetables of education."

Still want that debate, Ministress Lubben??  And how about thou, Gail??


Update (8-12-11): Well now, that didn't take long, didn't it?? APHSS legal council Karen Tynan decided to launch a Scud missile of her own towards Cal-OSHA and the AHF's attempts to browbeat the LA City Council towards imposing the condom mandate via workplace regulations through the LACDPH. The weapon of choice?? An official legal-issue letter to LA  City Attorney Carmen Trutainch.

The letter, which can be read here (warning, pdf doc, needs Adobe Reader), clearly debunks the claims of AHF and Cal-OSHA in attempting to overrule establishment legal precedent and hand off their responsibilities over to the locals, while still attempting their other legal coups through the regulatory processes.

The synopsis of the letter that was posted to the FSC blog says it better than I ever could, so I will simply quote from it.

“When I saw that counsel for Cal/OSHA was advising the City of Los Angeles to jump into this issue, I was appalled,” said Tynan. “I don’t see Cal/OSHA writing to the city council of Bakersfield or Fresno imploring those cities to write regulations on heat illness to protect the field workers, so why is Cal/OSHA taking this position on condoms?  This is another glaring example of the politics, judgment, and discrimination that swirl around the condom issue.

“I certainly hope that the Los Angeles City Attorney and his staff attorneys can cut through the misinformation and propaganda that continues to pour forth from AHF and their allies,” Tynan added.

In the letter, Tynan states clearly that Cal/OSHA’s attempt to hand off regulatory enforcement to local agencies is unprecedented on a legal basis, allowing local agencies to enforce health & safety regulation without clear authority to do so.

Also, Tynan points out several conflicts of interest raised by the relationship between the Cal/OSHA and nonprofit HIV organization AIDS Healthcare Foundation (AHF), including evidence that shows that AHF has provided expert witnesses and its own physicians to give testimony in proceedings regarding adult industry health & safety, while adult industry stakeholders had limited opportunities to present testimony or counterpoints to the data provided by AHF.

FSC, as the adult industry trade association, commissioned a report from respected biostatistician Lawrence Mayer MD, MFA, PhD, debunking the methodology used to analyze the data presented by AHF and showing that statistics used by AHF are inaccurate. That report was entered into record at the most recent Cal/OSHA meeting regarding adult industry health & safety.

“Since 2009, FSC and industry stakeholders have been working cooperatively with Cal/OSHA to arrive at industry-appropriate regulations for health & safety, so we are surprised at the latest developments,” said FSC Membership/Communications Director Joanne Cachapero. “Frankly, it’s shocking that a state agency would take action allowing the issues to become further politicized. The letter from Cal/OSHA to the LA City Attorney seems to indicate bias. It appears as if Cal/OSHA has decided to align their actions with Aids Healthcare Foundation’s continuing anti-industry campaign to mandate condom use on adult production sets.”

"Appears"??? Really, Ms., Cachapero?? There's nothing "appears" about it...Cal/OSHA and the AHF have been 69'ing each other for the past 5 years attempting to impose the condom mandate in porn. They've perfected the art of "conflict of interest" the way Dick Cheney did with Haliburton during the Iraq War years.

Porn Panic 2011: The Endless Loop Continues: Could Cal-OSHA Get A Big Hammer From The Cali Assembly?? SB 459 And The "Employees" vs. "Individual Contractors" Question

Don't look now, Clones, but Cal-OSHA may be getting some major support and overwhelming weapons in their battle to force the adult industry to impose condom use.

Mark Kernes over at AVN.com just posted today on a bill currently before the California Assembly that has already passed the state Senate and is currently in committee hearings that would basically resolve the ongoing battle between declaring adult performers (among others) as either "employees" or "independent contractors" based on their status.

Bear in mind that Cal-OSHA's proposed condom mandate/barrier protection regulations are totally dependent on adult performers being reclassified as "employees" so that they would come under the jurisdiction of their workplace protection laws. Given that, the proposal known as Senate Bill 459 would give them exactly the nuclear bomb they would like to beat the industry down with.

Here's how Mr. Kernes stated it in his article:

At issue is Senate Bill (SB) 459 which, as currently amended, would "prohibit willful misclassification ... of individuals as independent contractors," and "authorize the Labor and Workforce Development Agency to assess specified civil penalties from persons or employers violating the bill."


But according to lobbyist Matt Gray of the Capital Alliance Strategic Advocacy and Public Relations Firm, the bill "adds insult to injury" because "California law never clearly defines what is or is not an employee."

"Instead, California law relies upon a laundry list of employment circumstances, case law, and workplace conditions for each business to then decide for itself whether or not the worker is an employee or contractor," Gray wrote on the Capital Alliance blog. "Does the worker wear a uniform? When they handle money, do they keep it or does it go to the business? Does the worker control his or her own schedule? Is a 1099 issued? The totality of considerations goes on and on, and even state agencies will even disagree with one another on what set of circumstances results in classification as either an employee or contractor."

Adult nightclubs which feature stages upon which dancers strip and accept tips from patrons have been engaged in the "employee vs. contractor" dispute for decades, and decisions on the controversy all over the country have come down on both sides of the issue. But the problem will become central for adult movie producers in the near future, if the California Division of Occupational Safety and Health (CalOSHA) succeeds in expanding the California Health Code to define those involved in making movies (or other content) as "employees" rather than accept many performers' classification of themselves as "independent contractors."

According to SB 459, "willful misclassification" could subject "employers" to civil penalties of not less than $5,000 and not more than $15,000 for each violation, while if various state agencies or the courts find that the "employer" has engaged in or is engaging in a pattern or practice of misclassifying personnel, the penalty goes up to not less than $10,000 and not more than $25,000 for each violation.

"Then, to make matters worse, it [SB 459] set the lowest possible threshold for triggering a violation by relying merely upon 'willful' misclassification by the employer," Gray wrote. "To most people the term 'willful' means an act done of one’s own free will, intentional and voluntarily. As it applies to the law, it simply translates to someone improperly filling out a form—not that they intended to fill out the form improperly, but that they filled out the form and it was done improperly. In other words, guilty intent is not a requirement of a willful act."

So for instance, if SB 459 passes, an adult movie company which shoots a movie using no contract players but as many as 10 freelance performers (five sex scenes with two performers each) could easily find itself liable for $50,000 in civil penalties for paying the performers as independent contractors if CalOSHA decides that they are "employees"—and if the company did that for possibly as few as two movies, the penalties could easily ramp up to $250,000 per movie.

"To make matters worse, SB 459 made no allowance for affirmative defense against a misclassification, such as relying upon the advice of legal counsel, complying with case law, or adhering to industry-wide standards and historical practice," Gray noted. "That would mean 100% of all businesses with any misclassification would then be guilty and have to pay about $15,000 per offense! No exception."

Or, to put it in plain English, if an adult performer attempts to get around the condom mandate by claiming that (s)he is more of an "independent contractor", but CalOSHA rules otherwise, that performer of the company (s)he is employed by could be liable for a hefty fine for each scene they did....and they would have no recourse of appeal.

The goal, obviously, is to force the industry by threat of financial penury to adopt the condom mandate and "barrier protection" standards that CalOSHA (and by proxy, AHF) would love to impose at will.

Of course, supporters of the overall bill cite the notion of protecting "employees" who claim to have been underpaid under the cover of being declared "individual contractors", and adult nightclub/strip club workers have been clamoring for years for changes in the law to allow for the right to be designated as "employees" for the sake of better wage and benefit protections.

The bill is now currently on hold in the Assembly's Judiciary Committee, where representatives for the adult industry are feverishly attempting to include amendments to soften the standards for declaring companies guilty of "willful misclassification". However, given that the bill did pass the Cali State Senate by a large margin, it does appear that unless major and drastic action is taken, this bill will become law and those wanting to force condoms down performers' throats will have a powerful weapon on their side.

Naturally, we'll keep you posted on events as they happen on this.

Porn Panic 2011 Update: Why Some People Are Gluttons For Punishment: AHF Takes Condom Mandate/Barrier Protection Appeal To Cali Supreme Court

Sorry that I couldn't update this story further, had to resolve some issues with my computer.

Well....it seems that either AHF has either plenty of deep pockets and too much time on their hands, or they take defeat not too kindly. After being blocked by the California Appelate Court from their attempt to force the Los Angeles County Department of Public Health (LACDPH) to issue directives forcing porn shoots to impose mandatory condoms and barrier protections on LA porn performers and producers, Michael Weinstein's group has now decided to appeal directly to the California Supreme Court to force the issue once and for all.

Michael Whiteacre posted a comment to my previous post regarding the appelate court ruling, which stated that the courts could not induce LACDPH to any one method of intervention or prevention because the regulations were more like guidelines allowing for a wide latitude of options and not forcing any one option on regulations.

Needless to say, AHF begs to differ...and in their official press release announcing their decision to appeal the three judge panel ruling, they mince no words about how they feel.

Some quotes from their press statement:

LOS ANGELES--(BUSINESS WIRE)--In response to the dismissal late last week by California’s Court of Appeal, Second Appellate District, of an appeal (Case No. #B222979) by AIDS Healthcare Foundation (AHF) of an AHF legal action which sought a writ of mandate compelling Los Angeles County to take reasonable steps to prevent the spread of sexually transmitted diseases, including HIV/AIDS, in the adult film industry, AIDS Healthcare Foundation announced that it will file a petition for review with the Supreme Court of California.

“The agency’s inaction continues to needlessly place thousands of people at risk of disease.”

The AHF legal action was first filed in July 2009 in Superior Court of California, County of Los Angeles (Case No. BS121665). Through it, AHF sought a writ of mandate, “…compelling the Los Angeles County Department of Public Health to discharge its ministerial and non-discretionary statutory duty to combat an acknowledged epidemic of sexually transmitted diseases stemming from production of hardcore pornography in Los Angeles County.”

AHF filed the initial lawsuit after exhausting all other methods to compel the County to fulfill its obligation to protect the public’s health in the wake of a June 2009 revelation that an actress working in the adult film business had tested positive for HIV. At that time, AHF had urged the County to better monitor HIV and STD prevention in the region’s adult film industry—and require condom use, as required under state statute—or to shut down porn sets.

 Of course, the supposed "outbreaks" of 2009 and 2010 resulted in only two performers (and a possible third) actually getting infected with HIV ("Patient Zeta" in 2009, who more than likely skipped testing herself; and Derrick Burts, who still claims he got infected through a crossover gay male shoot in which condoms were actually involved)...so other than the usual hyperbole of exploiting a moral panic for personal advantage, it does beg the question why Weinstein is so gung ho on forcing LADPH to impose his personal dictates.

And as for the supposed "epidemic" of STI's in adult (as if the civilian sector in Cali isn't drowning in STI's on its own)...well, we have The Mayer Report to undercut that nonsense.

Even better than they hyperbolic rhetoric, though, is that AHF simply resets the same tired propaganda points that have been well disproven and debunked. Ergo:

Since the June 2009 reporting of that particular HIV outbreak in the adult industry—and subsequent reports by the LA Times that as many as 22 porn performers may have tested positive in the previous five years—no action has been taken by the County to halt the spread of STDs on LA porn sets or to conduct the proper and legally required public health follow-up with those thought to be infected.

“We will vigorously pursue this legal avenue with the California Supreme Court in order to try to compel LA County Health officials to safeguard the health and wellbeing of those working in the adult film industry in California,” said Michael Weinstein, President of AIDS Healthcare Foundation. “As an HIV and STD medical provider, it is our obligation to continue to pursue action on this issue, which goes beyond the recent HIV outbreaks and includes an epidemic of thousands of STD cases in the porn industry annually—an epidemic virtually ignored by the County Department of Public Health. County officials and porn producers should know we will not stop our efforts to protect the public health and will continue to fight the STD epidemic in the adult film industry.”

Riiight...never mind that the "22 HIV porn infections in 5 years" meme has already been debunked readily (16 were from gay male performers having nothing to do with the straight LA porn market, 4 were non-perforer private citizens using the testing of now defunct AIM, and the other 2 were the two cases in 2009 and 2010 cited..and even that number didn't include the 4 performers infected in the Darren James/Lara Roxx et. al. outbreak of 2004). And, not to mention that the aformentioned Mayer Report revealed the hogwash methodology and cooked-up science that deliberately inflated infections in porn performers as compared to the general population. Why let the truth get in the way of a good antiporn sex panic??

And, WHOA....what a bitchslap Weinstein levels at LACDPH..as if they have done absolutely nothing to support or even collude in AHF's efforts to take over performer testing and treatment and profit off condom sales....errrrrrr, protect the performers from themselves?Whatever happened to the love for Robert Kim-Farley and Peter Kerndt, who offered much of the bad information that Weinstein uses for his crusade??  Is he that much of a meglomaniac that he can't trust performers to protect themselves..or is this just one more means for him to shake down the industry for his own profits, or simply get them booted out of Cali for good?

The Free Speech Coalition blog has posted a solid rejoinder to Weinstein's announcement, and it packs a punch in debunking all of the arguments for appeal. Some snippage:

Of course, AHF’s agenda is enforcing mandatory condoms and other barrier protection in the adult industry – because apparently there are not enough legitimate issues facing those affected with HIV/AIDS or populations at risk for HIV infection. Apparently, all of AHF’s attention can now be focused on policing the adult performer population numbering, perhaps, 1,500 people.

Never mind that the adult production industry has successfully self-regulated the safety of its performers with monthly STI testing since 1998. The testing protocol instated by the now-defunct Adult Industry Medical Healthcare (AIM) clinic efficiently prevented HIV-positive individuals from entering the business, and also effectively limited the spread of infection when active performers tested positive in 2004, 2009 and 2010. AIM also served the sexual health needs of other high-risk populations not involved in adult production.

Never mind that another lawsuit, and numerous complaints filed by AHF were instrumental in contributing to the “financial hardships” that finally destroyed AIM.

Never mind that statistical information on STI rates for adult performers, presented by public health officials, has been described as inaccurate and “without basis in science” in a report commissioned by FSC, written by prominent epidemiologist and biostatistician Dr. Lawrence Mayer. That report was entered into record at the June 7 Cal/OSHA meeting, attended by scores of adult performers that wanted their voices heard in a regulatory process that will impact them the most. And never mind that AHF - not performers – has filed workplace safety violation complaints against adult production companies and agents, forcing Cal/OSHA into action.

Never mind that AHF keeps on quoting what they now must know to be inaccurate information; as in its press release, that “as many as 22 porn performers have tested positive in the last five years,” when in fact, the LA Times published that health officials retracted their findings concerning the number of performers that tested positive for HIV. And according to Dr. Mayer’s report, the stats that AHF quotes (as analyzed by LA County Public Health) on Chlamydia and gonorrhea in the performer population ALSO are wildly inaccurate.

And while AHF is busy playing nanny to adult industry performers and the public at large, did you know that a recent study shows that the highest rate of increase in HIV infection in the nation is affecting Asians and Pacific Islanders? When was the last time that we saw an Asian on an AHF billboard, or AHF launching media outreach to that community?

Did you know that HIV rates for gay and bisexual men in California may have been dropping steadily since the mid-2000s, and this may be due to improved treatments for HIV? AHF provides valuable resources for those living with HIV and should continue to do so – at the same time, taking responsibility for the education of at-risk populations about safe sex.  But adult performers – who test 12 times a year or more – are making an informed choice about their health and the work they do; how many average citizens are tested for STIs, even just once?

I'm betting that this gets laughed out of the California Supreme Court on sight.

Porn Panic 2011 Update: Cali Appelate Court Drops the BAH-LOCK And A Stern Smackdown On AHF Attempt To Force LACDPH Impose Condom Mandate

While we not quite so eagerly await the process of the new Cal-OSHA "barrier protections"/condom mandate regulations as they go through the bureaucratic processes, a resolution was reached legally on yet another attempt on another front by the folks at the AIDS Healthcare Foundation to force condoms down the throats of performers.

If you will remember, Michael Weinstein, the chief honcho of AHF, had been making huge noise about a lawsuit that his organization had filed last year against the Los Angeles County Department of Public Health, the ruling authority on health regulations for Porn Valley, stating that they had deliberately violated their duties by not enforcing exsisting regs supposedly forcing condom usage amonst porn performers.

That suit was thrown out by local state judge David P. Yaffe, who ruled that LADPH's rules were not manditory, but rather a simple guidline, and that LADPH was not held to the narrow standard that AHF was attempting to impose.

Well, AHF so did not like that decision, so they appealed to the California Appelate Court to vacate the lower court's decision, citing various laws and regs implying discrection, and asking for direct mandates to force LACDPH to enforce the condom mandate.

Well, as XBiz.com reported today, the appelate court just made its ruling in response to AHF. Essentially, they gave AHF the boot, as in: "Ahhhh....no, we don't think so."

 Some snippage:

L.A. Health Officials Can't Be Forced to Regulate Porn Shoots, Court Rules

LOS ANGELES — Los Angeles County public health officials have the discretion to mandate regulations to control sexually transmitted diseases on porn sets, an appeals court ruled Thursday.

The county had been sued by the AIDS Healthcare Foundation, which has been a thorn for the adult entertainment industry for years as it attempts to make condoms mandatory for all porn productions.

The AHF sued the county for its inaction over regulating porn shoots.

It lost in a lower court and reached out to the California Appeal Court, which ruled against it, 3-0.

Appellate judges, in the unpublished opinion, said the county's health department has discretion to determine what measures are necessary to prevent the transmission of communicable diseases and could not be forced by the courts to implement the specific means advocated by the AIDS Healthcare Foundation.

[...]

In their appeal, the AHF honed in on alleged violations of Heath and Safety Codes, including Sec. 120575, which requires that a health officer who knows or has reason to believe that any contagious, infectious or communicable diseases exists, or recently existed “shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.”

The appeal also focused on Sec. 120175, which refers to venereal diseases, and provides that it is the duty of the health officer to investigate all cases, to ascertain the sources of infection, and to take “all measures reasonably necessary to prevent the transmission of infection.” 

The AHF contended that the laws impose a mandatory duty to act to control the spread of sexually transmitted diseases, and asked a lower court to issue a writ of mandate directing the Department of Public Health to enforce Secs.120175 and 120575 by requiring adult film producers ensure performers are vaccinated for hepatitis B and use condoms during filming.

The AHF, in the alternative, asked the court to declare the department had abused its discretion under these sections in failing to take action and direct the agency to “cure that abuse of discretion.” 

But Los Angeles Superior Court Judge David P. Yaffe entered a judgment of dismissal, setting up a ruling on appeal.

On Thursday, writing for the majority, Judge Richard Aldrich said Secs. 120175 and 120575 do not “impose a ministerial duty, for which mandamus will lie,” but “a mere obligation to perform a discretionary function.”

The county Health Department has “discretion to choose among various measures, ranging from quarantine and isolation to physician referrals and testing in carrying out this duty,” he ruled.

Aldrich concluded the courts “cannot compel another branch of the government to exercise its discretion in a particular manner,” nor “compel the [county Health Department] to implement the [AHF's] agenda.”

Aldrich, who was joined by judges Joan Klein and Patti Kiching in the appeal, pointed the AHF to direct its efforts “at lawmakers to change the laws and workplace regulations.”

 Oh, geez...you mean that they will just have to go through the usual democratic channels to change regulations, and not get preferential treatment from the courts?? Don't these "evil liberal activist judges" (or wingnut activist judges,depending on the ideology du jure) know that they're abetting an epidemic of HIV-infected porn stars??  (All 2 of them since 2005.) Aren't they concerned enough about the pandemic of STI's going on in the porn industry, where chlamydia and gonorrhea is being passed around like candy at a fair?? (Not nearly as much as the general population, mind 'ya, but we all know that only slutty porn starlets get STI's and then infect the population, right??) Don't they have some empathy for all the young impressionable girls who are entrapped into doing such dirty, nasty stuff as facials and blow jobs and creampies and -- special ewwww -- anal sex?? Why do they HATE porn performers???

Actually, they don't....or maybe the appelate panel just happens to see like most of us what a crock it is to attempt to manipulate the court system to your own advantages.

Either way, nice to see that some people still have common sense. Hopefully, the Cal-OSHA board will show some as well.

The Official (And Very Belated) Review Of The Cal-OSHA Hearings (And How This "Weinstein-Gold-Lubben Model" Could Become Nationwide Very Soon)

I apologize for not being able to put this up earlier, due to work and time constraints.

Well, the first round of hearings over Cal-OSHA's proposed condom mandate/barrier protections has come and gone, and if the reaction by adult performers is of any indication, these regs are the most basic threat to porn performers' livelihoods since the LAPD busts of the 1980s.

Problem is, though...if the reaction of the Cal-OSHA officials heading the meeting are clear, performers' opposition simply won't matter, since the fix is already basically in.

And worse yet, these regulations could very well be extended nationwide without much of any feedback or protest.

I'll get to the worst case scenario later on..but first, a look at the proposed regs themselves as presented by the panel at the June 7th meeting.

Essentially, the regs would follow this template:

1) Adult performers and producers would be declared to be "employees" under Cali workplace laws in order to place them under the jurisdiction of Cal-OSHA's workplace protection regulations. Before then, adult performers were assumed to be "independent contractors", which are exempt from such protections under Cali state law.

2) Then, using the "employee" declaration, Cal-OSHA would envelop all porn performers into their new "barrier protection" scheme of STI prevention, mandating full barrier protection (read that to mean condoms, dental dams, and other means of "barriers") in place for performing any live sex acts during porn shoots. Essentially, that would totally ban all bareback intercourse involving P/V and/or anal sex, and, in the original proposal, oral sex as well (more on that anon). This would also ban external ejaculations (the dreaded facials or shots to other body parts), as well as internal ejaculations without barriers (such as "creampies" or swallowing sperm). "Manual sex" (involving masturbation or handjobs/self-stimulation) is not covered at all in the regs; but its status is not well known, and none of the Cal-OSHA staffers at the meeting could clarify their status.

3) The requirement of testing for STI's would be waived entirely, since under Cali antidiscrimination law you cannot test "employees" or ask about their STI status without their approval. Apparently, Cal-OSHA feels that the barrier protections would suffice such in preventing STI transmission that testing would be a moot point. Most active performers would probably disagree...and those  who packed the meeting did so quite directly and forcefully.

4) There is a caveat, though, Cal-OSHA did propose an amendment to the regs which would have exempted oral sex (fellatio and culliningus) from the "barrier protection" requirements, but with the provision that the performers wanting such without "protection" would have to (1) endure the entire passage of Hepatitis B vaccine shots; and (2) be certified to be "fit" for performing by a licenced physician via medical tests...and verification would have to take place within 2 weeks of performing that particular scene. For EACH oral act.

The bottom line on this would be that performers would have to not only wrap up (or dam up) in all porn scenes, but they would lose the system of preemptive testing that has mostly worked to keep STI+ (and especially HIV+) performers from performing to begin with. Basically, the current standard for gay male performers, which assumes that most performers are indeed infected and uses mostly condoms to contain the spread of STI's, would be imposed on the hetero porn industry, with no respect whatsoever for performer preferences or even the concern for performer health.

And, of course, this flies directly in the face of consumer preference, and actual sexual behavior, which tends not to buy into condoms or dental dams as a means of both "destroying the fantasy" and depicting actual sex in real life. (All those who use dental dams during sex, raise your hand. OK...all you married couples who have actually used a condom for oral sex...raise YOUR hand. Right.)

Since folks like Mark Kernes and Danny Wylde, commentators like Dr. Chauntelle Tibbals, and performers like Ela Darling, Shy Love, and Nina Hartley (all of whom attended the meeting and gave testimony) have already posted their thoughts on both the regulations and their impacts on performers, I will simply cede to their excellent reviews of the hearings, which I have linked. (Plus, I'm pretty damn sure that our contributor here Ernest Greene has more than a word or two or 1,000 to say on this matter, since he also dueled with the Cal-OSHA commisars there as well.)

For now, I'll just give my very own non-expert, pro-porn activist brain droppings on these regulations. The short two word response: They SUCK. (And not in the good way.)

OK...you want more than two words?? Here I go:

Deborah Gold and her staff may THINK that these regs are designed to protect performers, but the actual reality of shooting porn basically resolves to the opposite conclusion: that these regs are designed deliberately to destroy and annihilate porn produiction in California by imposing impossible conditions for shooting effective and profitable porn content. Do they really think that in the heat of passion, performers will simply stop themselves in the middle of a scene and put on goggles or wrap a condom around or break out the dental dam?? Don't they understand that the real point of porn is barely controlled lust and sexual desire, and that imposing artificial barriers to that desire will tend to break the lust bond between performer and consumer/viewer that gives porn its appeal??

These restrictions would simply reduce sexual portrayals to the level of bad softcore, where actors who barely touch themselves and are not even encouraged to even have erections would simply fake passion for the camera. Not to say that there aren't some beautiful softcore performers out there who can act out sexual passion pretty well, but most people who watch porn would rather see real hard penises and real vaginas and real people engaging in real, sweaty, lusty, and even dirty passionate sex. It's all about vicariously feeling the passion they see on screen....and only bare skin-on-skin contact (and the allure of the "money shot" and the actual orgasm can convey to the viewer that realism of sex. No bit of "safe sex" education or attempt at "role modeling" people to use condoms will change that fact. (And, it's not as if condoms aren't already readily available to the public as a prophalytic or a pregnancy prevention method.)

The attitude of the more "liberal" advocates of these regs appears to be "If we can force porn performers to be coerced guniea pigs for "safe sex" education, then we can get more people to use condoms and dental dams and other forms of "protection"...and STI's will be a distant memory. Yeah, right...and if we simply take away everyone's cars and only provided rail-based transit and bicycles as the sole means of
transportation, then all our energy needs would be licked, global warming would cease, and the world would be a much happier place. Of course, the risk of performers not knowing whether or not their partners are indeed STI free, or the risks of condoms tearing or breaking during a scene, or the minor threat of condomized sex causing microabrasions of a woman's vagina making her even more vunerable to injury or infection...all that is inmaterial to the broader goal of "protection". And of course. it's all done "for your own good"..as if performers are merely children or out-of-control sluts incapable of any means of self-protection or self-autonomy over their own choice of protection.

Then there is the protection of crossover gay male talent like Cameron Reid/Derrick Burts from any means of preventative testing, the ability of shysters like Mike Weinstein of AHF to monopolize the "testing" regime by converting porn studios into cash cows for his condom-only regimen; the complicity of a few "sex-positive" producers like Tony Comstock to sweep in with his special brand of "married couple' porn and pick off the charred bones of the industry...the hidden agendas could build a book of their own.

For the more "conservative" proponents of these regs (read, Ministeress Lubben and her Pink Cross Foundation groupies), the motivation is much darker; they simply want to drive porn out of California, if not out of America totally; and these regs would certainly be a step in that direction. More than likely, though, performers denied their rights to shoot scenes in California would simply either go to more porn friendly confines (such as Las Vegas or Phoenix or South Beach in Florida or maybe even San Francisco) in order to make their living. Or, they could simply downgrade themselves to making private Internet-based porn content out of their homes. Or...they can simply go underground and continue to make bareback sex scenes under the radar and attempt to stay one step ahead of the Cal-OSHA posse or the LAPD "obscenity" squad...but without any means of protection from not only STI's but even abusive and/or ripoff producers.

All in all, this "Weinstein-Gold-Lubben Model" of porn regulation is just about as effective in regulating out of business porn performers as the "Swedish Model" of punishing men for even thinking about patronizing sex workers is for prostitution and other forms of sex work.  The only difference between the two is that at least the Cal-OSHA regs are only set to take place in California.

At least, for now...but because these regs have to get the approval of the federal branch of OSHA before they could take effect, that has their proponents dreaming of even bigger fish to fry...as in making these regulations take effect nationwide via the federal OSHA code. That certainly would undercut the argument of the industry leaving California for other places....but I wonder how porn performers currently working in South Florida would feel if they had federal officials raiding their homes due to regulations they had no say over. Especially, in the wake or the dominant anti-regulation fervor of the TeaPublican era??

Folks, this isn't just Cali's war on porn...it's national. And it won't just be pornsters in Cali affected...but all of us. Time to step it up and fight like hell before we lose it all.


Note: A report on the Cal-OSHA hearing from Shaya Tayefe Monajer of the Associated Press can be found here (via BakersfieldNow.com). Also, see the perspective of adult film lawyer Michael Fattorosi.(who happens to also be the husband of Black performer Vanessa Blue) via his Twitter stream here. A rundown of tweets concerning the hearings can be found here; and also note reaction articles from both The Free Speech Coalition and XBiz.com.  Finally, for now, there is th LA Weekly blog article, which is here.

The Official Call To Arms For Adult Porn Performers In California (from Michael Whiteacre): Cal-OSHA Hearings Tomorrow!!!

Well, D-Day takes place in right around 24 hours from now....and if you are a performer and still not convinced of the importance of attending the upcoming hearing of Cal-OSHA in Los Angeles tomorow, then Michael Whiteacre would like to have a few words with you.

This was posted to the Luke Is Back blog this afternoon as an Op-Ed.

Mandatory Condoms, Cal-OSHA, Lubben, Whiteacre, Weinstein… Performers- Just GO TO THE MEETING!

OP/ED By Michael Whiteacre

As most of you know, tomorrow, in downtown Los Angeles, a Cal-OSHA Advisory Subcommittee is scheduled to address the issue of condom and other "health and safety" regulations on adult production sets.  I am writing to strongly encourage ALL members of the adult production industry to attend, but especially adult performers.

The pool of active adult performers has not been heard from by Cal-OSHA since the early meetings.
Instead, in testimony, the talent pool has been routinely insulted, demonized, degraded and mocked by Shelley Lubben of Pink Cross Foundation.  If there is any one reason why you should show up and make your presence felt, and your voices heard, it might be to forcefully rebut the outrageous, disgusting claims made by this sick woman.

At the last OSHA hearing, in March, Lubben described many current performers as victims, "young, dumb females who couldn’t read a contract," and who "can’t even understand words like ‘litigation’ or ‘arbitration.’"  She waived a copy of the standard industry model release as an example!  She also characterized adult performers (as a group) as "trained seals", claiming the reason performers don’t show up to these hearings to tell "the truth" is "because they’re frightened."

"Why is it for the past year when we’ve been having these meetings, only maybe a few female adult performers or even non-performers come?" she asked.  "They’re afraid for their lives, they’re afraid they’ll lose their jobs. Right here in Van Nuys, I’ve personally invited the porn industry to come face this meeting, and where’s the female porn actresses to speak on their behalf? They’re not here because they know that they’re going to be threatened, and they’re going to be blacklisted for telling the truth about what’s really going on…."

Dear performers, if that is how you see yourselves, and your industry; if that is how you wish to be perceived by the world; and if preserving your job and your rights and your freedom is unimportant to you, then by all means, brush this meeting off.

But if you are offended by these charges; if you consider yourself a competent consenting adult with the right to do with your body as you see fit; if you think that the government has NO RIGHT to force the entertainment industry to produce safer sex ads instead of escapist entertainment, and if you support your right to chose condoms or not THEN YOU NEED TO ATTEND THIS MEETING, for it just might be your last chance.

But this is about more than stereotypes, hurt feelings, and the public’s impression of adult performers.  This is about your livelihood.

Whether or not you support condom use, you should come to this meeting, for this process is not about condoms, as the OSHA proposal makes perfectly clear.  This is about killing adult movie production in California.  Period.

There has been NO attempt to actually promulgate reasonable, industry-appropriate regulations.  As Lily Cade wrote today, in the wake of a thorough and frank discussion of the OSHA proposal last night, "It doesn’t make us safer on the job to regulate our jobs out of existence. We’re not just talking about condoms here, but about barriers to prevent ALL contact with body fluids. ‘Condoms, gloves and eye protection are specifically mentioned.  That’s right, it’s time for the facial, break out your face shield."  This is not a joke, and it is not fantasy.  This is the Brave New World that the megalomaniacal sexophobe Michael Weinstein would wreak.

This entire crusade for "safety" has represented an attempt to railroad the adult industry by Michael Weinstein’s AIDS Healthcare Foundation and its willing accomplices at UCLA, LA County Dept of Public Health, and last, and certainly least, Pink Cross. This is a cabal of self-interested parties who are out to generate as much money, power and publicity off of the porn industry as they can.  They are opportunistic hypocrites, excoriating porn while they profit off it. They think you are all children and poor little victims, incapable of knowing what is in your own best interest.

Do not wait until your opportunity has passed.  For like this opportunity, your jobs, your personal freedoms and your way of life may soon be like the snows of yesteryear — gone, never to return.

I know that many in this industry have little faith in the industry trade organization, Free Speech Coalition.  Performers rarely join, and may feel that the organization is out of touch with their interests.

The reality is complicated — but I’d ask you to consider this: it is only Free Speech Coalition that has ACTUALLY STEPPED UP to address the crises in the adult industry. It is a very small organization, dwarfed by AHF, yet it is fighting this fight daily, and assembling plans to keep the industry going, and to keep performers safe in the wake of AIM Healthcare being run out of business by lawsuits and aggressive governmental action (most of it instigated by AHF).  Before you throw stones at FSC ask yourself, what have I done to help protect my industry, my job, my livelihood?  Now is the time for your voice to be heard.  It’s the bottom of the ninth, and this industry has to make it count.

Danny Wylde notes, "I’m going to assume you’ve become a performer to make money — and to make the most money possible … Even if some of the production companies stick it out and try this condom-mandated means of production, how many companies have to leave before you;re losing out on one, two, three, four, or five thousand dollars a month? … We all take a risk going to work every day. In my opinion, it’s a managed risk. And it’s something I choose to participate in so that I can get a paycheck at the end of my day.  So when I feel that someone else who doesn’t really understand our industry is coming in to take away that paycheck, I get kind of pissed about it. And I’d like to have a say in the matter."

Do you want a say in the matter?

Life’s great question is "Where do you stand?" Lily Cade writes, "Porn performers, the ‘workers’ that Cal/OSHA says it’s trying to protect, do not want these regulations. We want to be able to work."

If that is where YOU stand, then you need to attend this meeting tomorrow morning.  If not for your industry, then for your self and for those who may count on you for financial support.

The meeting will he held tomorrow, June 7, 2011 at 10 am

CalTrans Building
100 S. Main Street
Los Angeles, CA  90012

I say the adult industry should pack that motherfucker and makes its voice heard.  Where do you stand?

Incidently,  Lily Cage's essay can be found here (warning, contains NSFW images).

Porn Panic 2011 Update: New Report Debunks AHF/LACDPH/Cal-OSHA Cooked -Up Stats On Performer STI Transmission Rates..But Will Even THAT Be Enough? (Updated)

Updated...scroll to bottom.

Well....the Cal-OSHA hearings on the condom mandate proposals is tomorrow, and I'm sure that there will be plenty of industry heavyweights out there to make the case against imposing the condom mandate.

Today, they got a nice new weapon at their disposal....in the form of a report that debunks the presentation of officials at Cal-OSHA, the LA County Department of Public Health, and the AIDS Healthcare Foundation (AHF) regarding  the rates of transmission of sexually transmitted infections (STI's) among performers.

The report's author, Dr. Lawrence S. Mayer, was asked to review a presentation done by LADPH clinicians Peter Kerndt and Robert Kim-Fairley, which contained detailed statistics on the STI transmission rates amongst porn performers as compared to rates amongst the general population.

One of the fundamental foundations for pushing the condom mandate is that porn performers are infected far more often than the general population is, and without the need for "barrier protections" such as condoms (and dental dams, and the use of personal protection equipment) during sex scenes, performers are literally risking their lives everytime they do a shoot "unprotected".

As Mark Kernes reports at AVN.com in analyzing Dr. Mayer's newly published report, such claims are, to say the least, severely overhyped and distorted...and outright cooked out of thin air.

Perhaps Dr. Mayer's most important finding is that the numbers put forth by the health department doctors for chlamydia and gonnorhea infections in both the adult performer population and the public at large are statistically invalid, and therefore their conclusions are, according to Dr. Mayer, "without basis in science," and that their "conclusions, analysis and advice in these three presentations should be discarded."

That's an incredibly important finding for the adult industry, since one of the main reasons put forth for requiring performers to use condoms, dental dams, rubber gloves, goggles and face shields for all forms of sexual (and even some non-sexual) contact in adult movies is that adult performers have higher infection rates of STDs than, say, the average Joe or Jane at the local nightclub.

The idea that adult performers are more sexually active and must bear the brunt of such "protection" in order to "mentor" the general population on "safer sex" is a key talking point of groups like AHF...never mind that it restates the current right-wing trope about how porn is an incubator for "disease" and merely carries it via porn to general society. And, never mind the fact that people are just as capable of being safe and sexually active and conscious of their own risks and safety all by themselves, without the need for PPE or LADPH jamming condoms and dental dams down their throats.

It is those cooked stats that Dr. Mayer basically refutes...mostly, by attacking the methodology of how performer infections are counted in LADPH's "research". I have added bolded emphasis to particular points.

Dr. Mayer begins his report by analyzing Dr. Kim-Farley's presentation at the first advisory committee meeting, STD/HIV Disease and Health Risks among Workers in the Adult Film Industry, where Dr. Kim-Farley estimated that there were between 2,000 and 3,000 performers involved in the industry between 2004 and 2008, the years which he used in his calculations, and that 3228 sexually-transmitted infections (STIs) of chlamydia or gonorrhea were reported to the LA County Public Health Department during that period. Dr. Mayer points out that Dr. Kim-Farley provides no basis for either his estimate of the size of the performer population, nor does he provide any explanation of how the data on the alleged number of infections was collected.

"This is poor science," Dr. Mayer concluded, "and inexcusable in epidemiology which can be characterized as the science of estimating risk from counts."

Among the flaws that Dr. Mayer found in Dr. Kim-Farley's presentation were that he provided "no information on turnover or longevity in this industry, the proportion of cases that were re‐infections, or multiple testing of performers," thereby calling Dr. Kim-Farley's claim that "one-fourth of all performers are diagnosed" with either or both of those diseases "unfounded and misleading."

Part of the problem in estimating infection rates is that it requires the statistician to divide the number of persons infected with the diseases (the "numerator") by the total number of people in the population under consideration (the "denominator"), and if either of those numbers is inaccurate, the result will also be inaccurate.

"It must be noted that his estimation of the prevalence is based on the false assumption that performers are never re‐infected nor re‐tested within any one year," Dr. Mayer states, regarding the figures provided in Slide 17 of Dr. Kim-Farley's Powerpoint presentation. "He could have estimated the rates of re‐infection and re‐testing and adjusted for both although it would lead to a less startling, albeit more accurate, result.  The oversight is particularly bothersome and misleading because the AFI performers are re‐tested as many as 12 times a year or more. It would be rare indeed for [a] randomly chosen member of the public to be tested so often."

In other words, Dr. Mayer says that Dr. Kim-Farley's statistics apparently don't take into account the fact that an infected performer may have been retested once or even twice before the infection has cleared his/her system, thus jacking up the statistics for that disease, and also that the vast majority of performers are tested on a monthly basis, whereas the overwhelming majority of Los Angeles residents aren't even tested once per year—in fact, many have never been tested—so that comparing the infection rates of those two populations is statistically invalid.

Or, to put it in layman's terms:

Porn performers are required to be tested once a month, and many others test even more than that, as a requirement of future employment, and because many who happen to get infected are retested to insure the STI is cleared before they resume shooting, that will artificially inflate the rates of infection for performers.

For the general public, though, testing is mostly voluntary, based on fear of infection, and most people who ultimately get infected don't even get tested at all, thusly undercounting the rates in the general population.

Whether that's a flaw in the methodology or a deliberate cooking of the books is something I will leave to you to decide.

Regarding the rates of particular STI;s such as chlamydia and gonnorhea amongst porn performers, Kernes reads Mayer's study thusly:

Dr. Mayer deals with the issue of the prevalence of STD infections in the AFI [adult film industry] population later in the report, noting that the CDC recommends calculating chlamydia positivity by "dividing the number of women testing positive for chlamydia (numerator) by the total number of women tested for chlamydia (denominator includes those with valid test results only and excludes unsatisfactory and indeterminate tests) and is expressed as a percentage. The denominator may contain multiple tests from the same individual if that person was tested more than once during the period for which screening data are reported. The numerator may also contain multiple positive test results from the same individual if that person tested positive more than once during the period for which screening data are reported." [Emphasis in original]

However, as Dr. Mayer analyzes the data provided by Drs. Kim-Farley and Kerndt, the prevalence of STDs among the performer population "appears to use all positive tests in the numerator, but does not take into account the number of tests the subjects received. AFI performers are tested every four weeks. Kim‐Farley and Kerndt, lacking a denominator, used an estimate of number of AFI performers (2000 or 3000) when they should have used an estimate of the number of tests given to the performers. The two methodologies yield very different results."

At the end of his report, Dr. Mayer attempts that exact calculation, finding that for the years where data exists to make the calculations, the chlamydia and gonorrhea infection rates within the adult industry are statistically close to those which Drs. Kerndt and Kim-Farley found within the general Los Angeles population.

In other words, there is really no pandemic of STI's within the LA porn industry...at least, not greater than STI's in the general population.

Far more enlightening, though, is the way that Mayer reveals how LACDPH (through AHF and Cal-OSHA) deliberately distorted data they got from the former testing group AIM Medical Foundation to buttress their case for the condom mandate and other "protections". It seems that in the process, they couldn't even synch their stats to match each other.

Inbetween, Dr. Mayer tackles the report of Dr. Kerndt's 18-month "pilot study" (June, 2000-December, 2002) of "straight" performers, Public Health Issues in the Adult Film Industry: Policy Implications of an Outbreak, and finds that to be fatally flawed as well.

While Dr. Kerndt that according to that study, there were approximately three times as many chlamydia infections among straight female performers as among similarly-aged LA County females, and five times as many gonorrhea infections, Dr. Kerndt also failed to provide any data regarding the testing frequency of the "LA County female" population that formed the "denominator" count of his equation. But perhaps more troubling is his note that, "Not all individuals tested and reported by AIM are necessarily AFI performers."

In other words, not only do Dr. Kerndt's statistics attempt to compare apples (tested performers) with oranges (generally untested population at large); he doesn't even know who his "apples" are! They could just as easily be prostitutes or other at-risk women who have never even come close to making an adult movie!

Or as Dr. Mayer puts it: "Again, epidemiology is about counts, not policy. To treat counts so casually cuts against the basic grain of epidemiological reasoning. If the goal was to put numbers on the table to justify changes in policy then why not fabricate the entire analysis?"

Let us remember that AIM not only served industry performers, but also offered testing to private individuals as well...so not controlling for either the prevalency of multiple testing of infected performers or non-industry infections discovered by AIM certainly distorts the data in favor of higher STI rates amongst performers. Again, I'll leave it up to you to judge whether or not this was a slip in analysis or a deliberate con job.

Of course, the condom mandate proponents will probably dismiss Dr. Mayer as a paid stooge of the porn industry, and scream about the recent HIV/AIDS scares (restating the usual libel about how 24 performers have contracted HIV from sex during shoots, and probably using the likes of Ministress Shelley Lubben and Derrick Burts to shed crocidile tears over how "the inddustry failed and destroyed them" in the name of their scheme to impose condoms (and profit immensely from the government and the condom companies).

If they are the only voices heard, of course.

All the more reason why performers who actually care about their rights and livelihood absolutely must pack this meeting tomorrow and stand up and be counted and heard. This isn't about "protection"; this is more about a false choice between paternalism dressed up as "protecting performers" and running porn out of California entirely.

Unless, of course, you like your porn made in sweatshops in Lafvia.


Update:

XBiz.com just posted an article on the Mayer Report that gives further details on its genesis.

It was funded and initiated by the Free Speech Coalition, which has become the key organization that has been resistiing the condom mandate from the beginning, and who recently developed their own, performer-friendly, and far less intrusive, testing/treatment regimen to replace the one maintained by AIM-ORG before they were run out of business by the efforts of Cal-OSHA, LACDPH, and AHF.

Also...the report in its entirity is now available as a PDF file from XBiz, it can be read here.


Update #2:

The FSC just posted a blog entry synopticizing the Mayer Report over at their blog; and it also includes a link to the full report.

The Return (???) Of Sex Hate: Kimberly Kupps Arrested in Polk County, Florida For...Videotaping Sex With Her Husband?!?!?

It's bad enough to face down the proposed condom mandate that is about to be thrown down on the porn industry in California.

It's just as bad to be facing the issue of piracy via tube sites, torrents, and thieves.

But you would think that in the year 2011, the idea that a woman could produce and make a profit off of selling tapes of herself having consensual sex with other consenting adults, and sell those videos to other willing consenting adults would have been an established truth.

You would think that...but apparently, the sheriff of Polk County, Florida, has a fundamentally different view.

And he just used the full power of his office to impose that view on a 55 year old woman whose only crime was to share her joy of sex with her husband with others.

You think this is some nightmare?? For Kimberly Kupps (real name Theresa Taylor), it's all too real.

The story, from XBiz.com:

Kimberly Kupps Faces Obscenity Counts Over Web Content

LAKE WALES, Fla. — Kimberly Kupps, who co-operates namesake site KimberlyKupps.com with her husband, was charged late Friday with 13 obscenity counts for content distributed over the Internet.

The 5’ 10” 55-year-old performer specializes in the big-boobs niche and had been on the radar of the Polk County Sheriffs Department for three months.

The Sheriff’s Department booked her under statute 847.5 on 13 counts of “wholesale promotion of obscene material.”

Kupps, whose real name is Theresa Taylor, started in the biz in March 1990 and currently lives in Lake Wales, Fla. She frequently comes to California for porn and photo shoots, according to her website.

Kupps was jailed along with her husband, Warren Taylor, who remains locked up; Kupps was released Saturday night after posting $7,500 bail.

According to the police report, a deputy paid an initial $19.95 membership fee to her website, where he found videos of Kupps having sex with men and women.

The deputy downloaded six videos, burned them to CDs and asked Judge Reinaldo Ojeda to review them.

Ojeda, according to the police report, said the videos were obscene material under state law.

Taylor, Kupps‘ husband, said he filmed the videos downloaded by the deputy and uploaded them for sale on Clips4Sale.com.

Taylor said the couple made an average of $700 monthly for the past four months.

XBIZ reached Kupps on Sunday, but she declined to give further details or comment on the arrests.

Keep in mind that most of what Kimberly Kupps produced was the standard fare of sex acts with her husband, solo acts, and sex with female friends that most "at home" porn sites provide.

And yet, this was considered "obscene" enough for officials in Polk County to investigate her for three months, gather information on her through her website, and ultimately get a local judge to rule her work as "obscene" under Florida state law, which ultimately cleared the way for her arrest. A local account of her arrest from the local newspaper The Ledger, can be found here.

Turns out that the sheriff, Graddy Judd, happens to be a full-on fundamentalist Christian with a history of using his office to impose his right-wing morals onto his community.

I guess that he feels that he's protecting his people from being corrupted from the power of Kimberly's exposed nipples, or vagina, or something or another. I wonder if he's this aggressive in hunting down actual criminals who commit real crimes and injure people.

Even worse...how many more Grady Judds out there are empowered by the Religious Right and the Antiporn "Feminist Left" to violate the rights and the lives of other women who make their livelihood making consensual sex vids and running consensual sex websites??

Nice Frankenstein monster you created, Gail Dines and Shelley Lubben. I know you are celebrating this. The rest of us, though, should hang our heads in shame and rage...and then fight like hell..
P