SACRAMENTO—With all the hearings and news coverage of AB 1576, one might think that those who have been following the issue closely wouldn't be surprised when some new "revelation" or tactic bows its head as the process continues—but that probably depends on how fervently one supports one side or the other, and there were plenty of both present at today's hearing before the senate Labor and Industrial Relations Committee.
For example, the first words out of Assemblymember Isadore Hall III's mouth as he attempted to explain the bill to the committee were, "AB 1576 is a workplace safety measure that would require employer-paid mandatory STD testing of adult film actors at least every 14 days, and use of a condom or other protective equipment in all adult films produced in California." Indeed, Hall wasn't the only one who's changed direction and called this primarily a mandatory testing bill rather than a mandatory "condom or other protective equipment" bill—and it should be noted that Hall referred to "other protective equipment" at least three times during the hour-long session.
Hall also declared, "In 2013 alone, there were up to five documented cases of HIV transmission of adult film actors," even though, as activist/performer Lorelei Lee and Free Speech Coalition CEO Diane Duke later noted, it has been proven that such transmissions did not take place on any adult movie set.
Hall also claimed, as he did before the Assembly Appropriations Committee, "For all the talk that the industry will flee to Nevada, Nevada is already clear on its regulation of sex work. Sex work is not legal in Las Vegas. The counties that do allow sex work, condom use is mandatory, period. This is in addition to the fact that only two states in the U.S. allow for the legal production of adult film; that's California and New Hampshire. The adult industry's home is and will be in California. The fact is that the industry isn't going anywhere, and frankly, I don't them to go anywhere but in California, where they employ thousands of Californians, generating millions of dollars in tax revenues."
Doesn't matter that adult film acting is not considered "sex work" under either California or Nevada law, and that as Duke later noted, "A $30 million company from the Valley moved out of state earlier this year, and is happily working in Las Vegas, where they have welcomed us with open arms. They want the jobs, they want the ancillary jobs that come with this industry."
In other words, there was plenty of the same-old same-old in plain view.
Rand Martin of AIDS Healthcare Foundation apparently sought to derail some of the opponents' arguments by claiming that condoms are already mandatory in California under CalOSHA regulations (even though nowhere in those regulations does the word "condom" appear); that the testing protocols in the bill are superior to those currently used by the industry (except that the bill mandates the CDC-recommended antibody test for HIV while the industry uses the far-more-accurate PCR-RNA test); and that performers' medical information won't be exposed to employers or government employees (although the bill clearly states that employers are required to certify that "the employee consented to disclosing to the Division of Occupational Safety and Health that the employee was the subject of a human immunodeficiency virus (HIV) test," and how would they know that without some sort of access ot the test results themselves?)
Martin also claimed performers shouldn't be allowed to make their own decisions about whether to use condoms (and, one assumes, the "other protective equipment") themselves much as, "We don't let construction workers decide whether they're going to wear hardhats. We do not let welders decide whether they're going to wear goggles. We do not let doctors and nurses decide whether they're going to wear gloves in the operating room." But as Lorelei Lee pointed out later, in discussing vaginal chafing, or "condom rash" as it's called, which can cause micro-tears in the vagina which in turn cause an "increased risk of STI's," "Construction workers are not often harmed by their hardhats."
The last speaker in support of the bill was AHF's reliable Cameron Bay, and she too repeated the falsehoods-by-implication regarding how she herself was infected.
"I was an adult performer last year between May and August," she stated to the committee. "July 31 was my last shoot. I got a job working for Kink.com as an adult—which is an adult film studio in San Francisco, and I was tested for STDs and I was available for work. When I got there, there was up to about 75 extras on set and none of them were tested. During filming, the main performer I worked with had cut his penis and then was bleeding. They stopped shooting the scene to clean up the blood. I wanted to use a replacement, and there was a replacement there on set, but they chose not to because they could not pay the performer, so in turn, I had to continue working with the injured performer and we did not use a condom. They did not have an effective exposure control plan and I had to carry on the scene without any protection at all. If I had asked for a condom, another performer could have replaced me or would have replaced me. I would not have been paid and I would have had to pay my fee to my agent, which means I would have been out of pocket close to $400 out of a payment that I never would have received."
One problem: Much of that was apparently lies.
"Cameron Bay said something about being refused a condom on set or not being able to get one, when in fact she was actually offered one," said a reliable source who investigated Bay's allegations. "She stopped the scene for 30 minutes after she nicked his [Xander Corvus'] penis, and they had discussions, 'Do you want to continue? Do you not want to continue? Do you want to use a condom?' And she said, 'No, if he's fine without using a condom, I don't want to use one.' But it is in Kink's Model Bill of Rights that you always have the right to a condom, and it's in Kink's Bill of Rights that if she had in fact stopped the scene, she would have been paid. She said she would have been out money, and that's absolutely not true."
Somewhat chilling was Bay's statement, "I could have continued working that whole week that I found out I was HIV positive, because my test said that I was still good to go in the PASS system. I still had a checkmark next to my name stating that I was cleared to work, and I could have infected a lot of people because I was in my most infectious state at that time. I followed the adult film industry's self-regulations and I stand here before you today HIV-positive."
Aside from Bay's repeated implication that she contracted her HIV on set, her statement taken at face value would suggest that she was not tested by an industry testing service because she would then have been mareked as "unavailable" in the PASS system. However, no matter where the test would have been taken, an HIV-positive result would have prevented her from working. What she likely meant to communicate, though, was that there was a period of time (she charcterizes it as a week) during which she was positive with the virus but had not yet been detected via a test, and it is her contention that she could have worked that week and unknowingly exposed others.*
After the testimony by Hall, Martin and Bay, nine people registered their support for the bill, including one Sofia Delgado, who said she was HIV-positive and also implied that she had contracted it on a set—even though she has appeared in a grand total of two adult movies, both all-girl, and two solo scenes for SexuallyBroken.com
When it became Lee's turn at the rostrum, she noted that she was delivering to the committee "a petition of over 600 performers who have signed to say they have grave concerns with this bill and they strongly oppose it.
"I also have reached out to and spoken with over 100 performers myself, who have expressed their concerns to me," she added. "There can be no doubt that the majority of performers oppose this bill.
"The author of this bill does not speak for performers," she charged. "The sponsors of this bill do not speak for performers. They have not sat down with us. They have dismissed our attempts to give input, and the result is a bill that is shortsighted, that disregards any of our actual labor concerns, and that would mandate testing protocols that are in fact less strict and less rigorous than the ones we now have in place."
Lee also addressed the health privacy concerns: "In addition to jeopardizing our safety, this bill would force us to consent to the sharing of our medical information with the state. Mr. Hall has amended the bill so we no longer share that information with our employers, we share it with the state. This is a dangerous precedent to set, and I do not believe they would ask this of workers in any other industry."
When it became Diane Duke's turn to speak, she emphasized that there had been no on-set HIV transmissions in the adult industry in ten years.
"The speakers who spoke earlier today contracted HIV in their private lives," Duke stated. "We have strict protocols, as Lorelei has mentioned, in the industry already. That has resulted in no on-set transmission of HIV, and that's nationwide we're talking about. Just to put that in perspective, in LA County alone, daily, five cases, new cases of HIV occur every single day. So in LA County, just five a day. Nationwide, none on set in 10 years."
Duke also warned that there is currently a lawsuit in Los Angeles County regarding Measure B, which is "a very similar bill [a law, actually], not as onerous as this bill"—and that portions of it had already been found unconstitutional in federal court.
"The enforcement provision of that has been found unconstitutional," she noted. "The narrow issue of condoms has gone on appeal. The oral arguments were in March, so we're expecting a decision handed down by the end of the year. So this bill may be pushed through and may be found unconstitutional before it is even able to make it to law, so I really urge everyone not to create a law that may be found unconstitutional."
After Duke had finished her statement, 25 people rose to register their opposition to the bill, including performers Chanel Preston, who said she was speaking for APAC; Casey Calvert; Amber Chase; Veruca James; Jiz Lee; Maitresse Madeline; Ray Rucci; Sinclair Swan; Nick Moretti; Jonathan Strauss; and Owen Gray. Also opposing the bill: Attorney Karen Tynan; physician Dr. Darcy; Sid Nova of St. James Infirmary; and others who identified themselves as videographers, production assistants, talent managers—and Michael Chate, speaking for MindGeek.
It was then the committee members' turn to ask questions, and Sen. Holly Mitchell, who voiced support for the bill, asked if passage of the bill would affect any plans that CalOSHA has to revamp its health code to include regulation of the adult industry. AHF's Martin said it wouldn't affect it at all, and noted that it was AHF which had brought the lack of condom use in the adult industry to CalOSHA's attention in the first place. Martin also noted, in response to one of Sen. Mitchell's questions, that "You all just approved a restoration of 26 employment slots at CalOSHA for investigation purposes, because one of the problems during the recession is that they cut and cut and cut, and were not able to enforce the law as vigorously as they would like. That will now change now that you've been able to restore that money for them," referring to a budget bill.
Sen. Mark Leno, who gave an impassioned statement at the end of the hearing about why he opposed the bill, asked Martin to comment on the constitutional issues raised by the Vivid lawsuit against Measure B, but Martin downplayed the possible effects of a ruling in that case.
"The issue of First Amendment protections under Measure B is now before the Ninth Circuit, and we have no idea when it will be decided," Martin said. "So we acknowledge that this is not done in terms of the court's ruling. However we don't believe that the issue of First Amendment is ultimately going to prevail. We appreciate the trial court's decision in that regard and [it] echoed our concerns. I would also point out that ultimately, again, this bill is about documentation and not about the underlying condom requirement, so I suppose in one scenario, that in the future, the court could throw out the condom requirement, that could ultimately have an impact on the regulation of it, which is what this bill is, is about the regulation of that requirement. Obviously, it would not be enforced at that point. However, we don't want to hold off on moving forward with this important documentation requirement on the off-chance that a court, a higher court will ultimately decide that there are certain First Amendment protections that are not being afforded under Measure B, and Measure B, of course, is what's being enforced."
What was of particular interest was Martin's response when Leno brought up the fact that after the last Assembly hearing on the bill, the Sacramento Business Journal was required to print a retraction of its previous statement that there had been some HIV transmission within the industry on film sets.
"There has been a misunderstanding," Martin said, "and I'm sure we—and the opposition is just as guilty about perpetuating this: The bottom line is, because of California HIV privacy laws, it is impossible without a county public health investigation to actually determine where a transmission occurred. We have tried to be very careful to not say that HIV transmission occurred; we have said that HIV cases have happened within the adult performer community in a very short period of time last year, but we have not said that they happened on the set. The opposition has said, and they said it today, that it did not happen on set. They don't know any better than we do whether it happened on set or not. The bottom line is, because it could happen, and we believe that it has, that doesn't mean it's right or it's accurate, but we believe it has, it's important to make sure that protection is available."
As previously noted, the industry does indeed know, because of its testing procedures, that transmission did not occur on set, and AHF has previously at least strongly implied that it had, and one might suspect that Martin's backpedaling here might have something to do with Peter Acworth's recent threat of bringing a cease-and-desist order against AHF for strongly implying that on-set transmissions did occur.
Martin, however, went on to tout two studies of STDs in the adult industry, one which was published in 2012 (and debunked here) and the other done just one year ago, which AHF touted at a press conference just two weeks ago, and which was much discussed on AVN.com. However, when Leno asked the proponents to respond as to whether those studies indicated correlation or causation, Martin asked Dr. Paula Tavrow of UCLA's Fielding School of Public Health to speak to it—and she dodged the question.
"Two studies were conducted," she said. "One in 2012 was conducted over—in a single clinic over a five-month period that ended I think in August, 2010, and in that study, we found that there was a 28 percent prevalence of chlamydia or gonorrhea among adult film workers, and then there was a second study that was just completed a year ago, in June, 2013, of two clinics and that found that the rate just of gonorrhea and chlamydia was 28 percent among that community of adult film workers."
But when Leno reiterated that his question was whether the studies showed that adult film performing caused the infections, or simply that they found infections but could not state a cause, Tavrow admitted, "None of these studies can determine how someone acquired a disease," but later added, "The fact that, as Senator Hall was just mentioning, that it's ten times higher among the performers than it is among a comparable LA County population of 20 to 29 year olds does suggest to us that it was due to their work."
This "suggestion" was refuted soundly by Lorelei Lee, who stated, "The UCLA studies that were mentioned, one factor in those studies is that they were looking at performers who went to West Oak Urgent Care clinic. This is not a testing facility; this is someplace where performers go when they know they have an STI, so if you were to test performers from that clinic, you would get a 100 percent result of performers who have an STI. I have seen what's been published of the study. I have not seen any peer review of the study. I also have not seen it compared to a comparable population. I do not believe that that has happened. I do not believe that there is a comparable population who tests as often as we do, for example."
"I need to point out it is not a published study," Duke added. "It has not been published. There is a poster out about the results, and it was presented at a conference, but it is not a published study. They used two facilities. One was a test facility that was a PASS testing facility; the other was a treatment facility, so it would be like, as Lorelei said, like going to an oncologist's office and saying everybody's got cancer. When you go to a treatment facility, you're going to be surveying people who are being treated, so that's why that is problematic."
Duke also described how moratoriums work in the adult industry, pointing out that they're not done casually, but upon doctors' recommendations. She also seemed to take umbrage with Hall's earlier statement that, "While these moratoriums sound good to the press, they were unenforced and largely ignored by the industry."
Leno also asked the bill's opponents to comment on whether condoms were actually already required in adult film work?
"Regulation 5193 does not contain the word 'condom'," attorney Karen Tynan noted. "We have trial dates set on this issue on July 9, 10, 15 and 22-24 for two different companies, where ALJs [administrative law judges] employed by the state will be making determinations about the exposure control plan, but it's important to remember that that regulation, which was written in 1994 for healthcare industries, created exposure control plans that require testing that meets the standard of 5193, which says you either eliminate or minimize the hazard. We believe we eliminate or minimize the hazard with that exposure control plan through the testing."
Sen. Mitchell made some more comments, mainly about the bill not focusing on what she called the "new face of HIV/AIDS": young, heterosexual African-American women, whom she said were generally underserved by both heaqlth departments and the legislature, and committee chair Sen. Ben Huesco commented that he felt that the bill mirrored similar requirements of fed OSHA, and that therefore, committee members should have no fear of it being overturned if they passed it.
However, Assemblymember Hall was given a final chance to speak, and he spent his time dwelling on an issue he'd mentioned before: the recent fining by the court of Mr. Marcus for knowingly exposing—but not infecting—another performer to syphilis.
"I would just like to say, we had a witness here today, Cameron Bay, who very clearly stated that she tested negative and still had HIV while performing on the set, and you saw articles with Mr. Marcus in Los Angeles who was found guilty of infecting and exposing to a female to syphilis on the set and was fined $130,000 just this week and also served jail time," Hall lied. "She's really a person, she's present and she's telling you what happened. Mr. Marcus is a real person. The LA Times didn't just make up a story. It's the reality of what happens, and it's time that we start putting worker safety in front of profit in California."
But Sen. Leno got in some of the last words, and they were doozies.
"Some of the concerns that have been raised with regard to protecting the privacy of these actors, apparently overwhelming—I know it's anecdotal—opposition to the bill by those who work in the industry, concerns with regard to mandatory HIV testing, all leave me a little uncertain as to whether this is the right way to go," Leno said. "I would imagine with regard to Mr. Marcus, and I don't know why he wasn't fined more than he was, though someone of his ilk very likely could do what he did again even with this bill as law, and as a gay man who has experienced the HIV epidemic in San Francisco over the past 30, 35 years now, lost my own life partner to it, very close... Those that I worked with in the community for the past three decades, the organizations that started it in the early '80s and are still foundation stones of our HIV/AIDS community in San Francisco, are not in support of this bill. They've remained publicly silent, though I've had some conversations with any numbers of them—I'll leave the names of the organizations out, but they're both treatment and prevention advocates for treatment groups and they have reservations about this—privacy, mandatory HIV testing, things that they have been on the frontlines for the past many years, so for those reasons, I will not be supporting the bill today."
As noted earlier, the final vote count had Sens. Huesco, Mitchell and Padilla voting in favor of passage, with only Sen. Leno opposed. The bill will now move to the Appropriations Committee, and may be heard there as early as next week. Check back with AVN.com for the up-to-the-minute details on that.
* This paragrpah was edited and added to for clarity on 6/26.