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Trafficking Victims Bill Could Affect Adult Content Producers

Trafficking Victims Bill Could Affect Adult Content Producers
WASHINGTON, D.C. - With 18 U.S.C. §2257, the federal recordkeeping and labeling bill, currently in limbo, and last year's proposed revision (.pdf) unlikely to go into effect due to the government's failure to conduct mandated studies of the regulations' effects on small businesses, it seems likely that adult content producers will soon no longer be bound by the regs' prohibition against women with foreign passports performing in American-made porn.

However, a new bill introduced in the U.S. House of Representatives, H.R. 3887, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2007, may create problems with using foreign female performers that are even worse than the draconian 2257 regs.

In part, the law creates an "Office to Monitor and Combat Trafficking" within the U.S. Department of State, which is to be headed by a director nominated by the President and approved by the Senate - which director, if the law were enacted before President Bush's term expires, would likely be drawn from the leadership of one of the existing religious pro-censorship organizations such as Concerned Women for America or Family Research Council. The director will also be empowered to award grants and contracts to organizations to help implement the Act's provisions.

But that's not the primary problem for the adult industry; proposed Sec. 2423A is.

Titled "Sex tourism," Sec. 2423A provides, in subparagraph (a), that "A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 10 years, or both."

In case you don't know what "illicit sexual conduct" is, the Act later defines it as, in part, a "commercial sex act" - and in case you don't know what that is, Sec. 1591 of Title 18 already defines it as "any sex act, on account of which anything of value is given to or received by any person." Hell, it doesn't even have to be money; treating the gal to a nice dinner, or paying for her flight or hotel room, could arguably fulfill the requirement!

Veteran adult video producers are already aware of the rarely applied Mann Act, which bans the interstate transportation of females for "immoral purposes" - most recently mentioned in connection with former New York Gov. Eliot Spitzer, who paid prostitute Ashley Dupre to travel from New Jersey to Washington, D.C. to have sex with him.

But what many content providers may not realize is that there are few areas in the U.S. where courts have determined that it is legal to record adults engaging in sexually explicit conduct. The California Supreme Court's decision in People v. Freeman secures that right for anyone filming in California; a recent decision in New York City similarly distinguishes porn performances from prostitution, and it's unclear whether the areas of Nevada where prostitution is legal would also allow the filming of consensual commercial sex acts - but the legal right to make porn exists nowhere else in the U.S., and some jurisdictions specifically forbid it. Hence, any attempt to shoot foreign women engaged in sexually explicit conduct in the U.S. outside of the above-mentioned areas, either for magazines, DVDs or a Website, or if American women traveled abroad for similar shooting in countries that similarly forbid porn production, such performances would likely constitute "illicit sexual conduct" under H.R. 3887 and could trigger a decade's worth of imprisonment plus unspecified fines for the female participants.

Worse, however, is subsection (c): "Whoever, for the purpose of commercial advantage or private financial gain, arranges, induces, procures, or facilitates the travel of a person knowing that such a person is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned not more than 10 years, or both."

Translation: Bring a foreign woman to the U.S. to shoot porn, or send an American woman overseas for the same purpose - or in any way assist that international travel - and that "facilitator" could find him/herself facing a 10-year sentence and possibly huge fines under this Act. And let's not forget (e): "Whoever attempts or conspires to violate this section shall be punishable in the same manner as for the completed violation."

Incidentally, don't assume you can avoid prosecution by skipping the country. Revised statute 18 U.S.C. §1596 would grant the U.S. court system "extra-territorial jurisdiction" over the crime.

The bill has a couple of other interesting features. You know how most porn stars are hired, and payment agreed upon, by word of mouth - that is, an oral contract? Well, if H.R. 3887 becomes law, oral contracts will be a thing of the past if they involved foreign women shooting in the U.S., or American women shooting abroad.

Sec. 202(g)(2) requires that "Any person who engages in foreign labor contracting activity shall ascertain and disclose in writing, in English and in a language understood by the worker being recruited, to each worker who is recruited for employment, at the time of the worker's recruitment, the following information:

"(A) The location and period of employment, and any travel or transportation expenses to be assessed.

"(B) The compensation for the employment and any other employee benefit to be provided and any costs to be charged for each benefit.

"(C) A description of employment requirements and activities.

"(D) The existence of any labor organizing effort, strike, lockout, or other labor dispute at the place of employment.

"(E) The existence of any arrangement with any person involving the receipt of a commission or any other benefit for the provision of items or services to workers.

"(F) The extent to which workers will be compensated through workers' compensation, private insurance, or other means for injuries or death.

"(G) Any education or training to be provided or required, including the nature and cost of such training and the person who will pay such costs, and whether the training is a condition of employment, continued employment, or future employment."

It's unclear whether any of this would apply to independent contractors engaged for a specific project, though the Act defines "worker" as "an individual who is the subject of foreign labor contracting activity" (more on that in a moment) ... but it's unlikely that any adult company would want to go through the time and expense of a court challenge if the government attempted to apply these standards to a porn shoot.

Finally, while we're unsure how common it would be, absent 2257, that someone in a foreign country finds local women to travel to the U.S. to shoot porn, anyone who does that - that is, "recruit[s], solicit[s], hir[es], employ[s], or furnish[s] an individual who resides outside of the United States to be employed in the United States" - is considered a "foreign labor contractor," and such person is required under Sec. 202(g)(4) of the Act to "obtain a certificate of registration from the Secretary of Labor specifying the activities that such person is authorized to perform."

Importantly, however, "An employer who retains the services of a foreign labor contractor shall only use those foreign labor contractors who are registered under paragraph (4). An employer who uses a foreign labor contractor who is not registered under paragraph (4), or who uses a foreign labor contractor knowing or in reckless disregard that such contractor has violated any provision of this subsection, shall be subject to the provisions of this paragraph for violations committed by such foreign labor contractor to the same extent as if the employer had committed the violation." The fines for such violation start at $4,000 per affected worker, up to $10,000 for a third offense.

In short, some sections of H.R. 3887 may be a problem for the adult industry. That may be something Free Speech Coalition's Washington lobbyist may want to work on.
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Mark Kernes

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