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Attorney: “The adult film industry seems to think it can ignore the law”

from www.campusprogress.org – When Derrick Burts, an adult film actor in California, tested positive for HIV in October, the state’s porn industry came to an abrupt halt.

At first, it was just two studios—Vivid Entertainment and Wicked Pictures—that put the brakes on their productions. But before long, a total of five studios had shut down, each one hoping to curtail a potential HIV outbreak. Though the incident ended up yielding no new infections among active porn industry workers, it was nonetheless reminiscent of similar HIV scares within the industry (one of which, in 2004, resulted in the infection of three actors).

It also renewed questions about how well California is equipped to protect workers in one of its most profitable—and least discussed—labor sectors. Indeed, even through the state’s blood-borne pathogen standard requires employers to provide workers with “specialized clothing or equipment worn or used by an employee for protection against a hazard” (in this case, that equipment would be things like condoms; those hazards would be sexually transmitted diseases or infections, also known as STDs or STIs), the debate over exactly how to enforce such a standard has become a game of rhetorical, logistical, and legal ping-pong among stakeholders.

On one side are organizations like the AIDS Health Care Foundation (AHF), which has been pressuring California’s Division of Occupational Safety and Health (Cal/OSHA) for a year to beef up its blood-borne pathogen standard.

Because “the adult film industry has steadfastly refused to take any steps to protect its workers from diseases spread by blood-borne pathogens,” AHC argued in a petition it sent to Cal/OSHA last December, “clarification and enhancement” of the standard is required when dealing with porn.

“The adult film industry seems to think it can ignore the law,” says Brian Chase [pictured], assistant general counsel at AHC. “Our thought is, if we can make the law more explicit, it will make it more difficult for the adult film industry to keep placing their employees at risk.”

AHF’s petition, which points out that 2,013 cases of chlamydia and 965 cases of gonorrhea were reported among sex workers between 2003 and 2007, calls for condom use in all productions: no exceptions, no evasions. It also calls on studios to provide their employees with free hepatitis B vaccines, as well as free access to post-exposure prophylactic treatments for HIV.

The logic behind these demands, Chase explains, is that workers in the industry—performers as well as stagehands, camerapeople, and other workers in the industry—are disproportionately exposed to materials (semen, urine, feces) classified as “hazardous” under the blood-borne pathogen standard. “Protection,” therefore, should be construed the same way it is in any other industry: Physical barriers between humans and the diseases that harm them.

Some ex-performers agree. Ann Marie Ballowe-White, who went by the pseudonym Brooke Ashley during the six years she worked in the adult film business, contracted HIV on set in 1998. According to her, the industry does not do nearly enough to ensure its actors are safe.

“For condoms to not be used at all, or not allowed sometimes, oftentimes puts a worker at risk,” she says. “If it can’t be done safely, then it should be shut down … It’s an exploitation of a person’s health, of a person’s state of mind.”

Still, not everyone’s so quick to push for the use of condoms. In fact, porn industry advocates have argued vigorously against their use on the grounds that testing programs are an adequate prevention mechanism within the industry, and that the use and appearance of condoms in films would ultimately be a sexual turn-off—something that could negatively affect sales and lead viewers toward unregulated porn. As a result, some studios require condoms; but the majority of production companies make them optional—and at some, they are frowned upon.

Additionally, most adult film actors are required to undergo a monthly testing regimen that screens for chlamydia, syphilis, and HIV. Because the most recent positive HIV prognosis was determined through this system, porn industry representatives are quick to point out that the subsequent scare overlooks how effective the existing preventative structures actually were.

“What folks read in the media is, ‘Porn Performer Tests Positive for HIV;’ What they don’t know is that in both of these cases, the performer contracted HIV outside the industry and the program identified it, isolated it and kept HIV from being transmitted within the industry,” says Diane Duke, president of the Free Speech Coalition (FSC), an industry trade group. “The program works.”

Throughout a series of public meetings with Cal/OSHA and AHF, Duke’s group has proposed a definition of “protective equipment” that includes some room for rhetorical wiggling: Testing, medication, and other “means” that could be “used to prevent infectious contact with blood, vaginal secretions, semen, or other contaminant agents,” they argue, are sufficient. Groups like the FSC believe this proposal is a way to prevent condoms from becoming an end-all-be-all. But according to condom advocates, this language creates a slippery slope of definitions—one that could end up doing more harm than good.

“You’re not going to find a single competent public health expert anywhere who says that there is any gel or testing or force field or anything else that is as good at protecting people from STDs as condoms,” the AHF’s Chase says. “In no other industry­­—in no other context—do we deprive workers of workplace safety precautions because the employer is afraid it’s going to cost him money.”

If such differences in interpretation seem all but irreconcilable, that’s because they are. And yet, the bickering over condom use isn’t even close to the conversation’s end: Hovering above the debate are larger questions about Cal/OSHA’s capability to enforce the standard, regardless of what form it eventually takes.

Indeed, though Cal/OSHA has issued citations for blood-borne pathogen violations in the past, its enforcement power is based solely on reports of abuse. This means that its capacity for ensuring the safety of workers is derived primarily from the testimony of the actors themselves—many of whom don’t exactly have the negotiating leverage or desire to step forward, due to the nature of their work.

“We’re kind of doing our piece of the puzzle, but there’s a role for the local health department, there’s a role for the industry themselves, and there’s a role for the performers themselves,” says Deborah Gold, a senior safety engineer with Cal/OSHA. “There are a lot of different players in this.”

In addition, Cal/OSHA can only go about proving the standard has been violated through a complex series of steps: Proving an employee/employer relationship, isolating the location of a particular shoot (it must have taken place in California within a certain timeframe), proving that condoms weren’t removed through special effects or editing techniques, etc. This can be trickier than just presenting a DVD of visual evidence.

All told, the future of the blood-borne pathogen standard (and of many people who work in the adult film industry) is currently up in the air. The most recent HIV scare certainly refocused attention on a California law that goes essentially un-enforced; but it also raised questions about what’s at stake for those involved—including Cal/OSHA itself. In what Gold calls “a widespread, diffuse industry,” these challenges aren’t always as easy as simply fixing a law’s wording.

Still, Gold maintains that the priority­ remains keeping workers healthy.

“Because this industry involves sexual contact, it creates a certain uncomfortableness,” she says. “But in the end, it’s employees who are producing a product for their employer to sell. There are differences, but in the end, that’s really what it comes down to.”

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