From the description on the ballot, California’s Prop 60 sounds like a good idea. “A ‘yes’ vote would be a vote in favor of requiring the use of condoms and other protective measures during the filming of pornographic films, as well as requiring pornography producers to pay for certain health requirements and checkups,” says a sample ballot from Ballotpedia. “A ‘no’ vote would be a vote against requiring the use of condoms and other safety measures during the filming of pornographic films.”
Put that way, a “yes” sounds obvious: Condoms are good! Health care is good!
However, according to numerous porn industry workers and activists, it’s not that simple. Prop 60 has faced considerable backlash among those in the porn industry who say wording not made apparent on the ballot could have drastic consequences for the industry and put sex workers at risk.
“It looks like a progressive measure in a progressive state,” says Mike Stabile, communications director for the Free Speech Coalition, one of the biggest opponents of Prop 60. “It looks like a workplace safety measure. And unfortunately, with ballot propositions, a lot of people who are voting on it will be taking it at face value.”
If Prop 60 is passed, it would instate “The California Safer Sex in the Adult Film Industry Act.” Among other things, the act calls for the “provision of and required use of condoms during the filming of adult films,” and that producers must pay for things like STI testing and condoms. It also says, “There shall be a rebuttable presumption that any adult film without visible condoms that is distributed for commercial purposes in the state of California by any means was produced in violation of this section.”
According to Stabile, that puts unneeded regulation on an industry that’s already safe. In 2012, Los Angeles County passed Measure B, which is similar to Prop 60 in that it requires the use of condoms in porn produced in L.A. County. Stabile also says that regular testing for STIs is already a standard in the industry. “You can imagine if you had an STI test every two weeks [which he says is common practice] and if you failed it you were gonna be out of work for 2 weeks, you are gonna be really careful about who you have sex with and how that happens.”
What opponents are taking greatest issue with, though, is the problematic wording in Section 3.i of the proposition, which calls for “whistleblowers and private citizens to pursue violators of the act where the state fails to do so.” That opens the doors for anyone to sue producers, and sometimes performers, if a condom is not visible. The Sacramento News & Review also says that plaintiffs would receive a 25 percent of awarded penalties, which could incentivize private citizens to file lawsuits.
Currently, under Measure B, Cal/OSHA (the state’s occupational safety and health organization) can choose not to take action if someone reports condoms aren’t visible in a film. “Say, somebody calls in a complaint about a married couple doing a webcam, an increasingly common production type,” says Stabile. “Cal/OSHA may look at that and say, ‘We already know that couple, they’re married. Sure, it may be in violation, but we’re not going to take action.'”
Under Measure B, that’s where it ends. But under Prop 60, that individual citizen can choose to sue personally—which may leave many in the industry vulnerable, both financially and safety-wise.
Prop 60 was created by the AIDS Health Foundation (AHF) and its president, Michael Weinstein. AHF is the sole donor to For Adult Industry Responsibility, the campaign supporting Prop 60, and Weinstein is listed as the sole proponent of the proposition. That means he could be instated as the “porn czar” of California.
“The Act’s proponent(s) shall be entitled to assert its direct and personal stake by defending the Act’s validity in any court of law” if the attorney general does not defend the act, the proposal reads—which means, if the attorney general chose not to act, the law could become one man’s crusade for condoms.
However, Yes on Prop 60 campaign manager Rick Taylor insists that Weinstein is a “busy man” who “doesn’t need another job,” and that Prop 60 is a simple matter of protecting performers and punishing lawbreakers. “[Prop 60] would give [performers] the ability that, if they got sick on set, the producers would pay for the treatment, rather than it coming out of the performers’ pockets,” he told the Daily Dot.
He also says that, while existing law requires condoms, it would close a loophole that he says some producers take advantage of, which is that Cal/OSHA only has six months to act on violations. “Some producers will knowingly violate the existing law and hold the film on a shelf for six months, let the time lapse,” he says.
Taylor sees himself as an advocate for adult performers and Prop 60 as a means to combat the way others look down on them. “What upsets me is where people view the industry as—if they get sick, it’s OK, they’ve chosen that profession,” he says. “I found it outrageous that people think of these young men and women differently than a construction hard hat guy. I hope California voters will treat these workers the same way as any other worker, with respect and dignity.”
Opponents say that AHF and Weinstein did not consult anyone in the adult entertainment industry when writing the proposition, though Taylor says that’s not true. “I’ve met over a dozen former performers, and a few who are presently performing who go nameless” and who were consulted, he says, along with doctors, public health experts, and Cal/OSHA.
However, Taylor admits he doesn’t understand why so many performers have been opposing the proposition. He says performers may be protesting because they want to “appease the producers who may or may not hire them to be in the next movie.” He also compares the reactions to those around California’s motorcycle helmet laws. “When that law was passed, they protested and they went nuts, and in about a year or two, they were all wearing helmets.”
If Prop 60 is passed, “I think they’ll come around,” he says. “They’ll understand that it’s for their protection.”
According to current poll numbers, opinions on the ballot measure are evenly split. Most people assume condoms mean safe sex, and that if porn actors were already taking these precautions against STIs, what’s wrong with making them official? Shouldn’t you get in trouble if you put a fellow cast member at risk? But many argue that opening lawsuits to anyone means that private information could become public, something that’s extremely dangerous to many sex workers.
Porn actors, producers, HIV/AIDS activists and other organizations have banded together to oppose the proposition. In one op-ed for the Huffington Post, adult performer Casey Calvert says there hasn’t been an on-set transmission of HIV in a decade, and that lawsuits could mean private information about actors could become available to stalkers.
In a video for Adult Empire, hosts Chelsea and Becky explain that it weakens workplace safety and could make it more likely for performers to be harassed and abused.
Married couple Alyce and Justin (names changed) started getting into porn for fun a few years ago, first posting photos of themselves on Tumblr, and then shooting amateur porn. They tell the News & Review Prop 60 worries them, not just because they could go bankrupt trying to defend themselves in frivolous lawsuits, but because their identities could be revealed to family, friends, and employers.
Research shows that sex workers are often the targets of obsession and stalking, both from “fans” and from those who oppose their work, and many performers take great care to protect their identities and personal information. Lawsuits in the public record would make that information harder to hide. That’d be especially true for amateur performers, who often have “normal” day jobs they could lose because of the stigma of sex work.
Part of Prop 60’s wording is that only performers with a financial stake in their movies would be liable for lawsuits. That protects actors in big-budget films, but it means anyone who independently performs in and profits off their porn, such as cam workers or amateur productions, would be liable.
When asked about couples like Alyce and Justin, Taylor said, “Their problem is they’re gonna have to obey the law… If they want to distribute it to make no money, they won’t be in trouble. But if they want to make money, they’re gonna have to obey the same laws.” He also said that examples like Alyce and Justin are still rare, and that most porn is still made in larger studios.
But that’s not necessarily true. The porn landscape has been changing for a while. It’s no longer the video-store, San Fernando Valley production industry of our collective fantasies. There are no hard numbers, but Stabile estimates that “over 75 percent of all porn produced is either cam or amateur,” and that it accounts for over 50 percent of porn revenue.
Stabile says that Free Speech Coalition and other groups of performers and AIDS activists have been working with Cal/OSHA to provide better guidelines, many of which would align with those in Prop 60, but which would give “power to the performer.” These regulations, which would be specific to the adult industry, would say “at minimum, you have to have a condom or testing, performers choice, and you work it out,” says Stabile. “On top of that, we can talk about other ways of prevention—vaccines, PrEP, we want to give performers a toolbox and they can choose what makes sense for them and their bodies as long as it falls within those guidelines.”
Even if cam and amateur porn is far less than Stabile’s estimation, Prop 60 would still impose a one-size-fits-all solution for an industry that’s increasingly diverse, both in production style and in sexual representation. The needs of a heterosexual married couple having sex in their living room are different than a BDSM orgy scene, and by imposing one set of standards, many in the industry say production will just move out of state or underground, and further away from good regulation. “People aren’t opposed to more regulation or strengthening laws,” says Stabile. “But this is not the way to do it.”
The latest polls put about 20 percent of California’s population undecided about the measure, but its outcome could have considerable impact on anyone who watches porn made in California. Everyone involved wants to keep performers safe. What’s up in the air is who gets to be the expert on how that happens.