Will new condom law make porn safer?

July 10, 2012 

Few health issues are as obvious—or as guaranteed to generate headlines—as unsafe sex in L.A.’s booming adult film industry. But as an initiative requiring the use of condoms during porn shoots moves closer to the November ballot, it has become equally clear that, if it passes, the county would face a daunting challenge.

“This will be very difficult to enforce,” said the director of the county Department of Public Health, Dr. Jonathan E. Fielding. “If it passes, we’re going to do the best we can, and get the best ideas from everywhere, but there are some serious issues involved in this.”

Members of the Board of Supervisors on Tuesday delayed certifying the initiative for the November ballot until July 24. They asked for a report on the impact on the county, which would be required to enforce the law if enacted.

Backed by Los Angeles AIDS activists, the measure aims to address a chronic health hazard in the nation’s porn capital, where adult entertainment actors fear losing their audiences or jobs if they refuse to perform without condoms. At least three highly publicized industry HIV outbreaks have occurred since the late 1990s.

But the initiative also resurrects quandaries that have long vexed health advocates: How do you regulate a workplace that largely operates under the radar? And how much of the county’s limited health resources should go to a niche that generates only about 1.5% of all its sexually transmitted diseases?

“The nature of the industry is elusive,” said Mario Perez, director of the public health department’s Division of HIV and STD Programs. “Film shoots happen in folks’ living rooms and backyards. They’re scattered throughout the county, without fixed addresses.”

A 2009 report to the Board of Supervisors estimated that Los Angeles County had some 200 porn production companies, with about 1,200 workers engaging in direct, work-related sexual contact, mostly on unpermitted shoots that lasted only a few hours. And, health officials point out, unlike, say, a restaurant, where a kitchen either is sanitary or it isn’t, every act is a fresh opportunity for infection.

“In the most robust sense,” Perez said, “this initiative could mean that we would have to observe every sex scene in every adult film produced in Los Angeles County.”

During Tuesday’s meeting, Supervisor Zev Yaroslavsky echoed those concerns, saying that an unenforceable law would be “a mockery from the starter’s gate.”

“We need to figure out a way to make this stick,” he said, “and not just be a chapter in the municipal code that sits there as a symbol.”

L.A. porn has been both an economic engine and an intractable frustration. State and federal laws require employers to protect workers from potentially infectious bodily fluids, and Cal/OSHA has jurisdiction over workplace hazards—as the county has long argued. The state contends, however, that its resources are tight and employment complaints rarely arise from porn sets, where most performers are hired as independent contractors, not employees.

For years, the industry said it was policing itself through a screening database maintained by a nonprofit industry clinic, but HIV outbreaks in 1998, 2004 and 2009 fueled fears. In 2010, amid complaints and litigation from the AIDS Healthcare Foundation, which backed the current initiative, the county shut down the clinic for operating without a license, heightening awareness but eliminating one of the few checks on the industry.

The county has called for tougher state laws and reported suspected violations to Cal/OSHA. But local health officials have maintained that they have neither the resources nor the jurisdiction to become Los Angeles’ porn police.

Though the industry has generated thousands of STD and HIV cases over the years, the porn problem is dwarfed by other at-risk populations. The adult film industry has accounted for fewer than 20 of the more than 20,000 cases of HIV reported since 2004 in the county, for example. HIV afflicts an estimated 30% of the county’s black gay men.

“Every resident of the county matters to us,” said Perez, “but there are many other groups we also have to serve with scarce resources.”

The measure would force the county to create and administer a new permitting and enforcement bureaucracy. DPH could conduct random spot checks and, if necessary, revoke permits. Violators would be fined and/or charged with misdemeanors.

Advocates say the measure would be no less workable than the county’s systems for inspecting tattoo shops and food trucks. However, Fielding noted that most porn producers don’t tweet their location or hang out a shingle. Moreover, he notes, it is unclear whether industry fees imposed by the initiative would cover its full costs.

“Say you have a permit for 24 hours. Are we going have to have somebody monitoring all that time?” asked Fielding. “Or could it be a [less costly] complaint-driven system?”

AHF President Michael Weinstein countered on Tuesday that “all the health permits the county issues have spot inspections. That’s what we’re looking for.”

Legal questions also abound about the proposed measure’s geographic jurisdiction and constitutionality. Industry lobbyists charge that the measure threatens their free speech. If the law is enacted and found unconstitutional, the county would be legally liable.  But if enforcement fails to meet the standards of the initiative’s backers, they, too, could sue.

The Los Angeles City Council is still struggling to enforce a similar, though much narrower ordinance enacted there in January. Support for the county initiative seems to be strong, however: It easily qualified for the ballot, and an AHF spokesman testified that 63% of county registered voters had voiced approval of it in a March poll.

Posted 7/10/12

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