On April 2, the Labor and Employment Committee of the California State Assembly voted almost unanimously in favor of Assembly Bill (AB) 1576, which would mandate condom use, testing protocols and require adult companies to keep detailed health records of performers. The bill was sponsored by assemblymember Isadore Hall III. Tomorrow, it goes to the Arts, Entertainment, Sports, Tourism, and Internet Media Committee for a vote. If it passes, it will head to the Appropriations Committee, then hit the state legislature floor.
If you’re looking at the words “mandate condom” and “California” and feeling a vague sense of dÃ©jÃ vu, you’re dead on. In 2012, the AIDS Healthcare Foundation rallied the public to push the Los Angeles City Council to enact an ordinance that would tie condom usage to zoning laws, requiring porn producers to acquire a health permit and for all performers to wear condoms during scenes featuring vaginal or anal penetration. This measure was put on the ballot that year, becoming Measure B.
Measure B carried with 56.96 percent of voters in favor in November of 2012. The county’s Department of Public Health became responsible for inspection and enforcement.
It wasn’t long before it met its first legal challenge. The following January, Vivid Entertainment sued the L.A. County Health Department over Measure B. U.S. District Judge Dean Pregerson ruled on the case in August, with a mixed bag: he denied Vivid’s motion for a preliminary injunction against Measure B, but he did agree it was vague and raises constitutional questions with regard to the Fourth Amendment.
“Given that adult filming could occur almost anywhere, Measure B would seem to authorize a health officer to enter and search any part of a private home in the middle of the night, because he suspects violations are occurring,” Pregerson wrote on page 26 of his 34-page ruling. “This is unconstitutional because it is akin to a general warrant.”
Last month, the ruling was appealed before the Ninth Circuit, with the AIDS Healthcare Foundation taking over for the L.A. County Health Department (standing issues, anyone?). The three-judge panel reviewing the case adjourned and has not yet announced a ruling.
So, yes, you have read all this before. Yet despite being uncertain as to the constitutionality of enforcement, Democrat assemblymember for the 64th district, Isadore Hall introduced a similar bill to the California state assembly at the end of January. This is the third such bill from Hall, who has received campaign support from the AIDS Healthcare Foundation. Last year, Hall sponsored assembly bills 332 and 640, which were unsuccessful in legislating mandatory condom use in California’s adult entertainment industry.
AB 1576 is a little different than previous AIDS Healthcare Foundation efforts to mandate condoms. It would make it a requirement for every porn producer to establish, implement, and maintain a written injury prevention program that includes information about all scenes produced or purchased by a porn producer or website, the employees engaged in vaginal or anal intercourse in these scenes, and the protective equipment used in every scene. Additionally, records must be maintained by these parties regarding the sexual health of every performing employee, with test results no older than 14 days — and for which the employer must pay.
If this sounds great to you, consider for a moment how you would feel if every company for which you contracted — and most adult performers are contractors — had a file with your medical information in it. Now think of this as a business: what are the costs and risks of having to store this kind of information so you’re compliant with the Health Insurance Portability and Accountability Act (HIPAA)?
The porn industry, however, is already largely self-regulatory. Last year, they changed their 28-day testing protocol to a 14-day testing protocol. They have in place a computer system that shows performers as “available” or “not available.” “Not available” doesn’t necessarily indicate a performer has a sexually transmitted infection — it can also mean a performer has not yet tested in the past 14 days.
If condoms are already mandated, to some extent, in Los Angeles County, and the adult industry already self-regulates, why do we need to legislate porn? What are porn performers actually getting out of this? I hate to say it, but this bill sounds more like a way for AIDS Healthcare Foundation to score headlines than it does a way for porn performers to be safer.
UPDATE: On April 29, at 9:00AM, the Arts, Entertainment, Sports, Tourism, and Internet Media Committee of the California State Assembly heard AB 1576, with assembly member Cheryl Brown asking pertinent questions until Hall took the floor again to shame the legislature for thinking about the issue in terms of business instead of the well-being of workers (though many of them were in attendance to oppose the bill). The bill stalled at three in favor and three against and moved to a closed session, where it finally passed after district 51 assembly member Jimmy Gomez voted in favor. The bill will now move to the Appropriations committee before arriving at the full legislature. You can keep track of the bill here.
Header image by Ton Rulkens.