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OSHA 'Advisory Committee' to Study Mandatory Condoms (V2.0)

Membership of the committee is still up in the air

OSHA 'Advisory Committee' to Study Mandatory Condoms (V2.0)

COSTA MESA, Calif.—After spending more than 90 minutes hearing pro- and anti-adult industry advocates, the directors of the California Division of Occupational Safety and Health (CalOSHA) Standards Board, meeting this morning in the Costa Mesa City Council chambers, voted unanimously to form an "advisory committee" to study the possibility of requiring condoms to be used in adult movie production.

But while the vote was unanimous, opinions of the board members themselves were not. For instance, board member Guy Prescott, the Director of Safety for Operating Engineers Local Union No. 3, expressed concern that the advisory committee also study whether performers in adult movies are properly considered to be employees, as several OSHA inspectors have previously claimed, or independent contractors, as most of the performers consider themselves to be.  The issue is important because OSHA regulations are only applicable to employer/employee situations. Prescott also wanted the committee to look into the "educational portion" of adult health and safety training, stating that many performers may not be fully aware of their rights when called upon to perform sexual activities on camera.

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Board Chair John MacLeod pointed out that it would be important for the committee to be "fair and balanced," and should include a variety of knowledgeable personnel, including experts in epidemiology and representatives of the adult business community. However, neither the exact makeup nor the number of members of the advisory committee were discussed at the meeting.

The board's vote capped a civil but contentious public meeting, where present and former adult performers spoke of their experiences on adult sets, and advocates from AIDS Healthcare Foundation (whose petition to the board prompted the meeting) as well as former performer Shelly Lubben's Pink Cross Foundation added their own spin on what several referred to as a "health care crisis" affecting the adult industry.

The industry itself was reasonably well-represented by veteran First Amendment attorney Paul Cambria, Free Speech Coalition (FSC) executive director Diane Duke, FSC's Sacramento lobbyist Ignacio Hernandez, epidemiologist Dr. Howard Aronow and actress Angelina Armani.

The hearing began at 10 a.m. today, and was attended by about 40 participants and onlookers. The first speaker was Mark McGrath, of UCLA's School of Public Health Reproductive Health Interest Group, which earlier this year sponsored a symposium on adult industry healthcare to which no one from AIM Healthcare or Free Speech Coalition was invited. McGrath claimed that the consensus of the symposium, which included several members of the Los Angeles Department of Public Health and representatives of the AIDS Healthcare Foundation, was that condom use would reduce health hazards in adult production.

"At UCLA, my group conducted a health survey among performers," McGrath said. "The results indicate that performers are very anxious about their health and they do what they can within their limited agency to protect it. Most performers either prefer to use condoms or wouldn't mind using condoms."

McGrath further claimed that performers said they would be denied work if they chose to use condoms, and said that performers had shown him contracts they had been required to sign that would exempt producers from liability should the performer contract a "work-related infection."

"Since condom use is not optional, this risk is not voluntarily assumed by performers," McGrath said.

McGrath conflated producers of straight and gay movies in Los Angeles with producers in Palm Springs and San Francisco in charging that the voluntary STD surveillance and testing regime put into practice by AIM doesn't work.

McGrath was the first of several speakers to charge that adult producers solicit people off the internet and even approach them on the street to appear in adult movies, implying that such people are not properly tested before performing sex on camera.

Attorney Brian Chase, the first of several speakers from AIDS Healthcare Foundation (AHF), spoke next.

"When it comes to fulfilling their responsibilities to protect their workers, the adult film industry is not happy with California law at all," Chase charged, "and has chosen to flout California law and ignore the laws that are intended to protect workers from the threat of infection while they're on their jobs... The adult film industry cannot continue to profit by harming its workers."

However, when board member Dr. Jonathan Frisch, an epidemiologist, asked Chase how additional regulation would stop the adult industry from "flouting California law," Chase admitted that the state's blood borne pathogen standards would have to be changed, since the existing rules are more suited to dealing with hazardous waste than with bodily fluids on adult movie sets.

Lubben, whose last direct contact with adult movie-making was in her short stint (12 movies) as a performer in the early '90s, spoke next, repeating her oft-stated claims that she is a "survivor of the porn industry."

"As a former porn actress, I have suffered much at the hands of the porn industry and their illegal activities and hazardous work conditions I was subjected to," Lubben told the board. "I was subjected to being forced to do scenes with five or six—several male performers while there was blood and feces and urine and semen and vaginal fluid all over me. These are conditions that were all over the set while we're working. We're actually staring sometimes at piles of rags that they just throw on the set, and because most of the scenes are filmed in private homes where there is no one to monitor what's going on, and as a young girl, who's your advocate on set? There's no one."

Lubben claimed that "hundreds" of performers had told her that they had been threatened by their agents if they asked to use condoms, and that she herself had caught herpes and HPV while working in adult (though the Centers for Disease Control recently announced that one-sixth of the population between ages 14 and 49, the vast majority of whom have not worked in adult, suffer from herpes), which supposedly led to her contracting cervical cancer.

Cambria spoke next, noting that several of his clients had asked his advice about CalOSHA regulations as they might apply to the adult industry.

"I'd like to add a practical and, if I can, a reality-based view to this whole topic," Cambria stated. "The industry, as a whole, for over 15 years has been using medical tests effectively. There have been five cases of HIV, the last one not occurring in the adult area, and that number is obviously far below the national average, and this is as a result of companies using and utilizing medical testing. This low average was achieved without mandating condoms but instead relying upon medical testing by companies."

"California producers cannot economically compete with out-of-state or out-of-the-country producers who are not mandated to use condoms or in some cases, as has been suggested, things like dental dams and so on for oral sex scenes," he continued. "These producers cannot remove condoms from movies, post-production, cost-effectively. This is a frame-by-frame process which would once again place the producers in California at an economic disadvantage. Why do I say this? I say this because what will result by placing them in this position is, the less-responsible producers will go underground and the more responsible producers will relocate out of the state or they will purchase [content] from others who are not bound by the California regulations. And what this will do is result in little or no protections for adult workers compared to what exists now and can be improved upon, which is enhanced medical testing... California OSHA cannot impose regulations on the world. This is a world market. Producers from other places will be able to produce movies that California companies cannot compete with, and as a result, if the object is to protect workers, we're better off with reasonable and workable regulations in the state of California which will at least protect workers rather than to drive the business in production out of the state where there will be no protections."

Cambria urged the board to form an advisory committee, but that people "with a realistic and practical approach" as well as working performers and other adult industry members be included in its membership.

Two more Lubben acolytes followed Cambria at the rostrum: Elizabeth Rollings (14 movies) and Michelle Avanti (80 movies). Rollings claimed to have contracted herpes during her brief time in adult, and castigated AIM for not testing regularly for a larger variety of STDs. She also claimed to have been forced to participate in a bukkake with 25 men, not all of whom, she charged, had been screened for STDs.

"I've been on sets where there was blood-soaked towels or wipes or semen-soaked towels and wipes just laying on the floor openly and nobody did anything about it," Rollings contended.

One of Avanti's first scenes, she told the board, involved 75 men though she had been told that she would only be working with five, and that when she complained to her agent, she was told she would be blacklisted in the industry if she didn't complete the shoot.

"I was given cocaine and alcohol to get me through the scene," she alleged, "and drugged out, I did the scene and 75 men that were not in the porn industry... went and basically ejaculated all over my face and my hair and my mouth, and there was no condoms, and I sat there after the scene, crying, and I actually had to be carried off in a chair into the shower and they filmed all of that while I was crying, and there was urine all over my face and it was awful."

Avanti also claimed that when she was addicted to drugs and alcohol and went to AIM for help, she was rejected.

AHF president Michael Weinstein spoke next, suggesting that workplace safety (as defined by AHF) should take precedence over all other considerations.

"There are some that would have you believe that because these workplaces involve sex, that these workers should not be protected," he said. "They believe that the right of self-expression takes precedence over the safety of these workers. We strongly disagree. Porn workers should not give up their health and safety in order to work any more than a construction worker should be asked to work without a hard hat... This industry has boldly flouted the blood borne pathogen laws of California and the United States using the excuse that these regulations were intended for medical settings. Therefore it is critical to end the opportunity for this industry to avoid compliance by promulgating specific regulations suited specifically for this industry."

Weinstein dismissed industry claims that it would leave the state if forced to use condoms in sex scenes because creating adult movies is illegal in all but two states, and claimed that testing alone was insufficient to prevent transmission of STDs.

Weinstein was followed by former performer Darren James, now an AHF employee, who admitted that he was "the main guy in that whole outbreak" but seemed to take no personal responsibility for having had sex with an untested partner while shooting in South America, thus becoming HIV-infected and causing four actresses to suffer the same fate.

James claimed to know of several instances where performers worked without tests, charging that, "These people need a lot of help," and that the industry itself needed to be "reconstructed."

Tim Tritsch, AIM's former lab representative, spoke next, and though he claimed that his speech was necessarily constrained by HIPAA regulations, he spoke generally of seeing "the despair on people's faces—especially women—when told they have an STD," and that while AIM has done "a fine job of harm reduction... the holes in the system as they exist today are too big. The industry offers no prevention whatsoever."

Actor/director Dave Pounder took the microphone next, delivering one of the longer speeches of the day. He recounted his entry into the industry, asserting that though he knew that using condoms "was the right thing to do," that nobody would shoot him if he insisted on using them.

Pounder too claimed that predictions that the industry would leave California if forced to use condoms in productions were overblown because the actresses won't travel long distances just to shoot a scene. However, Pounder admitted that although he had had condoms used in some of his own productions, it was the movies without condoms that sold better, and that when he asks the actresses he hires for his movies if they want to use condoms, the vast majority say, 'No."

Ponder also compared potential regulations requiring condoms in movies to laws prohibiting minors from working in adult, claiming that similar arguments could be used for or against either position, and that "if people get used to condoms, they'll want them all the time."

When Ignacio Hernandez took the podium, he spent his first few minutes correcting the record made by some previous witnesses. For example, he noted that the UCLA symposium that had been referenced had excluded any significant participation by the adult industry itself, even though both Dr. Sharon Mitchell and Diane Duke had asked to attend, and that therefore, the pro-condom "consensus" that Mark McGrath had claimed should be viewed with suspicion. He also noted that it was important to distinguish "amateur" producers who mostly shoot far from the Los Angeles area and who may not used tested performers from the companies which make up the actual adult entertainment industry, which universally require performers to be tested.

Hernandez also referenced the 2004 Darren James HIV outbreak, noting that the industry's immediate response had been to completely shut down production until all performers could be tested. He also noted the hearings held by then-California Assemblyman Paul Koretz shortly after the James incident, noting that Koretz had gone into the hearing convinced that mandatory condoms would be the "single, sole solution," but changed his mind after receiving testimony from various industry members.

"The industry takes the health of its workers extremely seriously," he stated, "and we do appreciate this forum to have a professional discussion, and we welcome and invite your committee to put together a professional discussion in that forum as well, to get to the real issues of the real industry... You have the opportunity to put on the advisory committee folks who are actually stakeholders, not making this a sensational debate, not giving in to the prejudices that some may have about the industry; you have the opportunity to bring in individuals who will be up front and put full disclosure out about what really happens in the industry. We urge you to do that."

Finally, he noted that there had not been a single case of HIV transmission within the performer community since 2004.

"Testing has been working," he noted, "and that's why, since the incident in 2004, we really have not heard of any contracting HIV within the industry, and that is critical; when you consider the extent of the activity in the industry, to go a period of five years or longer without an incident of Someone contracting HIV within the industry, something is going right."

The board next heard from actress Angelina Armani, who spoke of her experiences in the industry.

"I have worked for multiple companies with my choice of performing with multiple people as a contract player for Digital Playground and independent worker," she said. "From my experience of almost two years in the adult industry, I have never participated in or witnessed any unlawful behavior with my producer, director or any on-set worker that would jeopardize my health or safety... AIM is a nonprofit organization that encourages healthy practices and lifestyles of performers. Due to AIM's superior knowledge and support, I have never caught a sexually transmitted disease in two years of active performing."

The next speaker, Dr. Howard Aronow, an epidemiologist of 30 years experience, reiterated that, "As to HIV, there has not been a single case of HIV transmission in the adult movie industry in Los Angeles County since 2004... A review of AIM's reports on sexually transmitted diseases and HIV reveals a lower than the overall tested general population prevalence for sexually transmitted diseases within Los Angeles County. For example, from well over 10,000 tests per year for each reportable sexually transmitted disease in 2004, gonorrhea was down to 2.3 percent of all tests, and chlamydia was down to 3.6 percent of all tests. These are lower, again, than Los Angeles County's overall general population's tests."

He also noted that many of the positive STD tests reported to the county by AIM involve subjects who are not adult performers, and that performers who have tested positive for an STD often come back for a retest before being cured, which situations, Aronow charged, would account for the skewed infection numbers reported by the County Department of Health.

The penultimate speaker was Diane Duke, who traced her entry into the adult industry from her previous position as director of a Planned Parenthood clinic, noting, "We in the adult entertainment industry take workplace safety very seriously," and that FSC had created both a workplace safety manual, and more recently, a plan to deal with blood borne pathogens on adult movie sets.

"We are eager to work with CalOSHA to develop industry-appropriate standards for adult productions," she said. "Due to the controversial content of our productions, the adult entertainment industry makes for an easy target for many individuals' and organizations' personal, political and religious agendas, and you've heard some of that today. As the board considers an advisory committee to review blood borne pathogen standards for the adult entertainment industry, I urge you to set aside sensational posturing and the views of extreme individuals and organizations, and consider the real issue at hand here: Workplace safety and risk reduction standards for California adult productions."

The final speaker was AHF associate, Dr. Robert Kim-Farley, director of communicable disease control for the County Health Department, who admitted that his department has been urging increased regulation of the adult industry since 2003, including "condom use for all high-risk sexual encounters" and "setting screening requirements for STDs by the state with screening costs paid by the industry and offering vaccinations for appropriate medical conditions; mandating education and training of all adult film industry performers, and for assuring monitoring to ensure that compliance with state and local health departments paid for by the industry."

"It has also been the consistent position of the department that screening alone is not sufficient for preventing the spread of STDs including HIV," he said. "Through disease monitoring, we know that rates of STDs such as chlamydia and gonorrhea are over seven times higher in the adult film industry than found in the general population, and up to one quarter of performers are diagnosed with STDs in the course of one year," he added, referring to his department's unreliable statistics. He also took issue with AIM's medical information release procedures, implying that they violate HIPAA standards, but provided no evidence to support any of his claims.

The hearing concluded with Dave Pounder taking the microphone once again to "correct" statements made by other industry speakers, then with Angelina Armani correcting Pounder, and finally with Lubben again promoting her foundation and claiming that many adult performers abuse drugs and alcohol "all over the place."

How the CalOSHA board will make sense out of the contradictory and often false testimony they heard at this hearing is anyone's guess, but hopefully their new advisory committee, with knowledgeable adult industry representatives as members, will get to the bottom of it all.

 






Related Content:

Free Speech Coalition
Diane Duke
Paul Cambria
Michelle Avanti
Angelina Armani
Mark Kernes

Comments

Posted 03/26/2010 by markkernes
Mark Kernes responds to the above points: 1. AVN was misinformed as to James' employment status. AVN regrets the error. 2. AVN stands by its story. Dr. Mitchell, owner of the clinic which conducts the majority of the STD tests for adult performers, and who has the most accurate statistics on STD infections within the industry, was not invited to participate in the Dec. 4, 2009 UCLA symposium to discuss condom use in the adult industry. AVN attended the press conference which occurred prior to the symposium, and we find it difficult to believe that such a large number of attendees appeared at the symposium spontaneously without an invitation from the symposium's sponsors. Nonetheless, Dr. Mitchell was not invited to attend. 3. Despite Ms. Rodriguez-Hart's representations as to Department of Public Health practices, there remains no way to correlate DPH's claimed adult industry infection rates with the significantly lower rates obtained from AIM's own analysis of its own records absent DPH simply ignoring the distinction between AIM's performer and non-performer reported STD infections and the multiple reports of repeated tests from the same infection. Hence, Ms. Rodriguez-Hart's claims regarding what is "not possible" in DPH's statistical analysis remain suspect.
Posted 03/26/2010 by markkernes
Christina Rodriguez-Hart, Co-Chair of the Adult Film Industry Subcommittee of UCLA's School of Public Health comments: I just read your article "OSHA Advisory Committee to Study Mandatory Condoms (V2.0)," and I had a few corrections/comments to make. 1. Darren James is not in any way employed by AHF. 2. Sharon Mitchell never asked to come to the UCLA Symposium, so there is no possible way she was denied admittance. 3. Dr. Aronow claimed that many people are included in DPH STD stats that are not performers. If you look at AIM forms when they report a positive diagnosis you would see that the person's occupation is written. Therefore the DPH easily separates and reports the STD rates for performers only. Also, he claimed that people who come back to retest and are still positive are counted by the DPH multiple times. This is also not possible. The DPH's stats discount anyone who tests positive again within a 20 days period, since they realize that that person has the same infection. Any people that retest positive within 20 days of their first test are considered false positives and taken out of the numbers. Mark Kernes responds to the above points: 1. AVN was misinformed as to James' employment status. AVN regrets the error. 2. AVN stands by its story. Dr. Mitchell, owner of the clinic which conducts the majority of the STD tests for adult performers, and who has the most accurate statistics on STD infections within the industry, was not invited to participate in the Dec. 4, 2009 UCLA symposium to discuss condom use in the adult industry. AVN attended the press conference which occurred prior to the symposium, and we find it difficult to believe that such a large number of attendees appeared at the symposium spontaneously without an invitation from the symposium's sponsors. Nonetheless, Dr. Mitchell was not invited to attend. 3. Despite Ms. Rodriguez-Hart's representations as to Department of Public Health practices, there remains no way to correlate DPH's claimed adult industry infection rates with the significantly lower rates obtained from AIM's own analysis of its own records absent DPH simply ignoring the distinction between AIM's performer and non-performer reported STD infections and the multiple reports of repeated tests from the same infection. Hence, Ms. Rodriguez-Hart's claims regarding what is "not possible" in DPH's statistical analysis remain suspect.
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