For the March 2010 Cal/OSHA hearing testimony of Shelley Lubben, other former pornography performers, and a current pornography performer and producer, all of whom exposed harms and abuses of the pornography industry, please scroll down or click on selected links below.
People who testified about the abuse and neglect in the pornography industry in regards to health and safety, in the order that they testified:
Mark Roy McGrath, UCLA School of Public Health
Brian Chase, AIDS Healthcare Foundation
Shelley Lubben, Pink Cross Foundation
Jan Meza-Merritt, Former Adult Actress
Madelyne Hernandez, Former Adult Actress
Michael Weinstein, AIDS Healthcare Foundation
Darren James, Former Adult Actor (HIV-positive from pornography)
Tim Tritch,Former AIM Healthcare Foundation Laboratory Representative
David Mech, Dave Pounder Productions (Current pornography producer and performer)
Robert Kim-Farley, LA Dept. of Public Health
Others in attendance at the hearing:
Whitney Enepram, AIDS Healthcare Foundation
Julian Rivera, Lakeview Professional Service
Steven Dzierba, Pink Cross Foundation
Melanie Dzierba, Pink Cross Foundation
Peter Kerndt, LA Dept. of Public Health
Deborah Gold, DOSH
Peter Riley, DOSH
Jane Steinberg, LA County STD Program
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SELECTED HEARING MINUTES AND TESTIMONY:
OPENING COMMENTS
Chair MacLeod indicated that this portion of the Board’s meeting is open to any person who is interested in addressing the Board on any matter concerning occupational safety and health or to propose new or revised standards or the repeal of standards as permitted by Labor Code Section 142.2
Mark Roy McGrath with the Reproductive Health Interest Group at UCLA, stated that in November 2009, there was a symposium at the UCLA School of Public Affairs that included performers, producers, and public health advocates. The broad consensus was that the proposed regulations requiring condoms in the adult film industry would be a significant barrier to reduce workplace hazards. This echoes recommendations from the World Health Organization that the condom is the most reliable and effective method to prevent sexually transmitted diseases (STDs).
At UCLA, the Reproductive Health Interest Group conducted a health survey among adult film performers, and the results indicated that the 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 would not mind using condoms. Adult film industry spokespersons claim that condoms are an optional choice, but performers have indicated that they would be denied work if they exercised their right to this choice. Additionally, performers have submitted contracts that they have been required to sign. The language of these contracts attempts to exempt production companies from liability should a performer contract a work-related infection.
Since condoms are, for all intents and purposes, not optional, this risk is not voluntarily assumed by performers. Representatives from the adult film industry insist they can self-regulate, and they have an effective surveillance system. However, production companies in Palm Springs and San Francisco do not participate. In addition, these same production companies have engaged in practices that have endangered performers—openly soliciting members of the general public over the internet to have sex with performers for filming purposes. These same filming productions can include a single performer having sex with as many as 50 individuals. Mandatory condom use would significantly reduce workplace infections in these scenarios. Additionally, affordable editing software is available to readily digitally remove condoms if required by the producers.
Industry spokespeople have also indicated that regulation would drive production out of state. Indeed, many high-risk genres are already produced in Eastern Europe. However, it is in our capacity to protect citizens of California engaged in this line of work. The measures being sought today are reasonable and cost-effective. Condoms are, for all intents and purposes, free from a variety of public health sources.
Bryan Chase, Assistant General Counsel with the AIDS Healthcare Foundation, stated that the adult film industry has an odd relationship with California law. California is one of only two states in the country where it is clear that it is legal to produce hard-core pornography, so when it comes to the rights that are employed under California law, the adult film industry is pretty happy with the state. But California also has some of the strictest workplace protections for employees in the country, and when it comes to fulfilling their responsibility to protect their workers, the adult film industry is not happy with California law at all and has chosen to flout California law and ignore the laws that are intended to protect workers from the threat of infection while they are on their job.
The producers of adult films even go so far as to often require performers to sign contracts allegedly waiving their protections under California workplace laws. While those familiar with the law are aware that contracts purporting to waive worker protections are not legal or enforceable in California, a lot of employees in the adult film industry are young, unsophisticated, and unlikely to be familiar with the nuances of California employment law. When employers take advantage of young workers and try to deceive them into thinking that they have waived rights that they enjoy, the state needs to step in and clarify the fact that all workers in California enjoy the right to be protected from harm, damage, and disease at work.
Cal-OSHA exists to protect all workers. The adult film industry cannot continue to enjoy the protection and the rights of California law while not taking the responsibility that California law requires. The adult film industry cannot continue to pretend that exposing young to the threat of STDs, exposing young people to gonorrhea and chlamydia as a condition of working is acceptable. The adult film industry cannot continue to profit by harming its workers.
Mr. Chase closed by asking the Board to adopt the proposed petition decision, and ultimately, to amend the standards to make it absolutely clear that all workers, including workers in adult film productions, are protected from the threat of disease.
Dr. Frisch asked how creating another regulation solves the problem of adult film producers flouting California law. Mr. Chase responded that the existing standards for blood borne pathogens were not designed with the adult film industry in mind. It is obvious that they cover the adult film industry because they cover all industries in
California. However, the regulations requiring gloves, goggles, and similar protections seems to imply that the reasonable precautions that are outlined in the standards are geared towards other industries. Since the adult film industry does different things than those in the medical industry or those who are picking up hazardous waste, it makes sense to give them regulations that they can more easily follow and are less likely to flout.
Shelley Lubben, Executive Director of Pink Cross Foundation, stated that she is a survivor of the porn industry. As a former porn actress, she has suffered much at the hands of the porn industry and their illegal activities and hazardous work conditions. She was subjected to being forced into scenes with several male performers while there was blood, feces, urine, and seminal and vaginal fluid all over her body. These conditions are common on the sets while the performers are working. At times, the performers are made to stand on piles of rags. Most of the scenes are filmed in private homes where there is no one to monitor what goes on, and there are no advocates on the set for the young performers.
Ms. Lubben stated that she and the Pink Cross Foundation have helped more than 50 performers leave the adult film industry, and hundreds more have shared their stories. The performers report that agents are often forcing performers to do scenes or threatening them with cease and desist papers or blacklisting if the performers ask to use condoms.
Ms. Lubben stated that she contracted herpes, an incurable STD, while working as an adult film performer. In addition, she contracted human papillomavirus, one of the most prevalent STDs in the industry, for which the industry does not test. This later led to Ms. Lubben’s contraction of early cervical cancer, during which she had half of her cervix removed.
She asked that the Board convene an advisory committee to develop a standard that would protect this segment of California workers.
Jan Meza-Merritt, a former adult actress, stated that during her time in the adult film industry, she contracted herpes and chlamydia. Adult Industry Medicine (AIM) only feels it is necessary to test for HIV, chlamydia, and gonorrhea. There are many other STDs that a performer can catch and spread in the adult film industry, and the tests are only mandatory every 30 days. Once a performer does his or her next scene, the test that was just performed becomes null and void. During the 30-day waiting period, an unprotected adult film worker can catch and spread many STDs unknowingly.
As a performer, she did a scene with 25 men. She had been told that she would not have to do the scene with all 25 men, that she would be completely protected and safe, and that all of the men in the scene would be screened. That turned out to be false; she had to do the scene with all 25 men, and it was not until after the film was completed that she discovered that not all of the men were adult film performers, some of them were fans or had answered an ad in the local valley newspaper. She had semen, saliva, and sweat all over her, and people wanted to take pictures with her, which is how she discovered that some of the men were fans.
She has been on sets where the female performers have joked about taking a “seven-day vacation” because they have contracted chlamydia and it takes seven days for the medication to be effective. She has been on sets where there were blood- or semen-soaked towels or wipes laying on the floor rather than in a biohazard container, and no one did anything about it. She has been on sets where the house or the rental unit is not clean and a less than healthy workplace.
Ms. Meza-Merritt is in full support of the proposed petition decision, and she knows of many other women in the adult film industry who may be too scared to speak up, but this issue hits home for them as well. It is imperative that the adult film industry is made to protect its workers.
Madelyne Hernandez, a former adult performer, stated that she had done over 100 scenes in addition to performing on internet sites. She has worked for every company in the porn industry, and she has contracted STDs, including gonorrhea and chlamydia. While she was still very new to the industry, she had to do a scene with 75 men. She did not know that her agent was aware of the number of male performers to be included in the scene. She was told that there would only be five or six men, and when she arrived at the set, there was a long line of men. She called her agent crying and begging to be released from doing the scene. Her agent told her that she would be blacklisted and unable to work if she did not do it. At the time, she needed money, and her agent told her that the directors and producers would take care of her. She was given cocaine and alcohol to get her through the scene. The 75 men in the scene were not adult performers but they had answered an ad in LA Weekly. They ejaculated on her face, in her hair, in her mouth, and there were no condoms used. She was so distraught and intoxicated at the end of the scene that she had to be carried to the shower in a chair, which was also filmed. She became addicted to drugs and alcohol, and she went to AIM for help, but they did not help. She recalled drinking alcohol with AIM employees while they were drawing her blood. She asked that the Board adopt the proposed petition decision.
Michael Weinstein, President of the AIDS Healthcare Foundation (AHF) and the Petitioner, stated that AHF does not believe that the lives of the young people in the adult film industry are expendable or disposable, which is why they submitted the petition. AHF has seen the damage that unprotected sex in pornography has wrought on its clients, and AHF believes that the State of California has a responsibility to regulate these workplaces as they do every other workplace in the state.
There are some that would have the Board believe that because these workplaces involve sex, these workers should not be protected. They believe that the right of self-expression takes precedence over the safety of these workers. AHF strongly disagrees. Adult film performers should not have to trade their health and safety in order to work any more than a construction worker should be asked to work without a hard hat.
Many politicians have avoided this issue because they are squeamish about dealing with sexual matters. The result has been thousands of STDs in this industry. 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 any opportunity for this industry to avoid compliance by promulgating specific regulations suited for this industry.
As for the argument that producers will move out of state should a regulation be enacted, AHF has already filed sanitary usage complaints against companies in Florida, and AHF is currently investigating filing similar complaints in Nevada, Arizona, and New York. In addition, California is the only state in the union in which adult films are not considered prostitution. Therefore, the ability of this industry to operate in other states is severely limited and constantly at risk. In any case, AHF will follow them anywhere they go.
At the heart of this matter is the industry’s contention that testing is a substitute for condoms. There are legal brothels in Nevada, and those brothels have mandatory testing programs and mandatory condom use. As a result of those laws, there has not been a single case of HIV in that industry since those laws became effective in the 1990s, and there have been extremely low rates of STDs. The reality is that testing, while desirable, is not a substitute for barrier protection. To be clear, AHF is not against pornography, it is not their goal to make it illegal; the issue under consideration is the narrow issue of whether or not the current regulations are sufficient to protect these young people and whether there should be an advisory committee to recommend stiffer regulations that can, in fact, protect these performers.
Dr. Frisch stated that in its petition, AHF has defined adult films in a very specific manner to include some multimedia, and one of the struggles with this issue is who is actually exposed. It seems that it is being based on the end product rather than the activities that lead to the exposure. He asked whether there are other occupational settings in California where sex is an activity that is considered part of employment. Mr. Weinstein responded that he was unaware of any other workplaces that have any legal protection. However, in Los Angeles County, there are a number of commercial sex venues where people pay for admission but they are not employed as sex workers. Los Angeles County has regulations in place to govern those venues.
Dr. Frisch asked whether there are theatres at which sex is part of the performance. Mr. Weinstein responded with his understanding that paid sexual activity outside of film content is illegal. He further stated that he knows of no instance where people are paid to have sex that has the protection of the law outside of the adult film industry.
Darren James, a former adult performer, stated that he was involved in the 2004 (HIV) outbreak. The industry needs to be reconstructed. He stated that there is a lot of sexual activity between the scenes and after the scenes. A test provides a false sense of security, but no one knows what the other performers are doing behind the scenes or outside of the workplace setting. A performer cannot be aware of everyone with whom his or her partner has had sex and whether those partners have been tested. Condoms in conjunction with testing would be a big step toward prevention, and the need for both must be constantly communicated to the young people coming into the industry. Educating the performers is also an important element.
Tim Tritch, former AIM Healthcare Laboratory Representative, stated that while he was never an employee of AIM, he did spend a lot of time there, and he met several of the performers. He stated that every day in the adult film industry, performers are exposed to STDs. Every day, someone in the adult film industry catches an STD. There is a strong need for the State of California to address these issues. He expressed thanks to AHF for submitting the petition.
In the adult film industry, there is a lot of sex occurring off-set and between scenes. There is a 30-day testing period for the performers, and before working in the adult film industry, a performer must have documentation of testing that is no more than 30 days old. If a performer arrives on a set with a test that is 20 or 25 days old, and they have had unprotected sex with multiple partners, who in turn have had sex with multiple partners, that test may no longer be accurate. Performers are repeatedly exposed to STDs; AIM does a fine job of testing for gonorrhea and chlamydia, but there is a whole host of other STDs to which performers are exposed including herpes, HPV, and pelvic inflammatory disease.
The industry does not pay for the testing; the performers pay for their own tests. If a performer catches an STD, they pay for their own treatment. He stated that freedom of expression is not free, and if the cost of a producer’s freedom of expression is the health and well-being of the people employed to produce that expression, the producer should at least share in that cost. It is not just a financial cost, but also a human cost. It is a human toll that is being imposed on these people. They may be there voluntarily, but there are unscrupulous people in the industry. The holes in the system as it currently exists are too big and do not provide any protection to the performers. This is a workplace safety and health issue, and the specific workplace issues must be addressed. There are no preventive measures provided. AIM Health Care does a fine job as a harm reduction program, including treating STDs and notifying partners when a patient tests positive, but they do not provide prevention. Testing is not a substitute for prevention. Mr. Tritch stated that the producers like to say that the industry is self-regulating, but when questioned closely about who performs the regulation, the answer adds up to nothing.
He asked that the Board adopt the proposed petition decision that the Division convene a representative advisory committee—including industry producers, performers, and health care organizations—to examine the issue of possible regulation in further depth. He also urged those in the industry to actively participate in the advisory committee.
David Mech, an adult film performer, producer, and director and President of Dave Pounder Productions, stated that he began performing in adult films approximately ten years ago. When he stated that he preferred to use condoms, he was told that he could not work. He stated that he did not need the money, but he enjoys performing in adult films. However, most performers that go into the business, particularly females, are in dire situations and need money quickly. They are not in a position to demand condom use. In addition, agents are not paid until the actress does the scenes. If an actress demands condom use, she is going to get less work than an actress who does not, and the agent will make less money.
Mr. Mech eventually began directing and later producing, and he found the same situation. When he started producing films for other companies, he was told not to use condoms. Even as a producer wanting to use condoms, he is limited in the amount of work he can get. With his own products, he can use condoms, but when producing for other companies, he is told not to do so.
If there were a regulation requiring condoms in conjunction with testing, it would address the issue of being able to work, both for performers and independent producers. He stated that Mr. Cambria was partially correct—if the Board were to adopt a standard, most production would move out of state. However, the revenue that would be lost is not necessarily very significant, because the companies are still domiciled in California. Thus, a domiciled California internet company producing content in Florida must pay the costs for the performers and the director, but the revenue from selling that product will go to the company in California, and taxes on that revenue will be paid in California.
He stated that mandatory condom use is not yet the world standard, it has to start somewhere. If California adopts a condom regulation, Florida and other states would likely follow. He stated that production of adult films will not go out of the country for several reasons. The first is that there is a large demand for American girls, and most performers do not last long in the business. Many girls do one scene, it is not a very good experience for them, and they leave the industry. The performers that have been in the business for several years are in the minority. An 18-year-old girl who wants to enter the adult film industry will balk if told that she has to obtain a passport and go to Singapore to make a film. She is more likely to work as an escort, and although it is illegal, condom use is more prevalent.
Mr. Mech further stated that there is a production company in Florida that will hire girls off the street for films. They do not want to test these girls because they want to shoot the scene immediately, so they will use a condom. He stated that a friend of his who works for a local health department indicated that it is actually safer to not test and use a condom than it is to test every 30 days but not use a condom. He echoed Mr. James’ point about where and with whom performers are having sex between scenes or in their off-hours. Although the industry self-regulates and tests for chlamydia, gonorrhea, and HIV, there are a number of other STDs, including herpes and hepatitis. He stated that because the industry does not test for hepatitis, it is possible for a performer with hepatitis to continue working and spreading the disease to all partners. Thus, in addition to condom use, the testing should be expanded to include herpes and hepatitis.
He also stated that many companies will not use condoms because of aesthetic values, indicating that the films will not sell if condoms are used. However, one of the longest-running, largest production companies is Wicked Pictures, which is a condom-only company. There are non-condom companies going out of business on a regular basis, while Wicked Pictures survives. Condom films may sell less, but not so much less that it will put a company out of business. In addition, if condom use were mandatory, it would become the norm in the industry, as is testing for STDs.
Dr. Frisch asked about the relationship between the actors and the production company, whether it is an employer-employee relationship, an independent contractor relationship, or cash-under-the-table relationship. Mr. Mech responded that a production might choose to make a performer an exclusive contract performer, which would mean that he or she would only work for that company. The company then is that performer’s employer, and they pay the employment taxes, etc. Other performers are independent contractors, who pay for their tests and treatment. These independent performers are typically represented by an agent. He expressed the opinion that all the performers should be employees of someone, whether it is a production company or an agency. In mainstream entertainment, everybody is an employee of somebody; there are no independent contractors, and that arrangement should exist in the adult film industry as well.
Chair MacLeod reminded speakers that the question before the Board this afternoon will be whether or not to establish an advisory committee, not adopt a regulation. He stated that it would not be necessary to repeat points that had been made by other speakers, as those points are currently in the record.
(Please scroll down to see more of Dave's testimony after others had testified.)
Dr. Robert Kim-Farley, currently serving as the Director of Communicable Disease Control and Prevention of the Los Angeles County Department of Public Health, stated that since 2003 the County of Los Angeles has consistently gone on record to support increased state regulation of the adult film industry to decrease the significant public health risks to performers to occupationally acquired HIV and other STDs through: requiring condom use for all high-risk sexual encounters; setting screen requirements for STDs by the state with screening costs paid by the industry and offering vaccinations for appropriate preventable conditions; mandating education and training of all adult film industry performers; and monitoring to ensure 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. 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 an STD over the course of one year.
After the HIV outbreak in 2004, the Division of Occupational Safety and Health (Cal-OSHA) determined that the blood borne pathogens standard applied to this industry. The standard requires the use of barrier protections such as condoms, medical monitoring requirements to pay for HIV STD testing and hepatitis B vaccine to be paid by the employer, a confidential medical record for each employee, an exposure control plan, and worker health and safety training. In many adult film industries, it is still business as usual with low rates of condom use and high risk sexual practices such as unprotected, prolonged, and repeated sexual acts with multiple sexual partners over short periods of time. These practices increase the likelihood of acquisition and transmission of STDs. In addition, performers are required to divulge confidential health information such as HIV STD test results to their employer as a condition of work.
While it is believed that the adult film industry relies on monthly, voluntary STD testing of performers, this system is inadequate for preventing and spreading disease. The department, therefore, supports the proposed decision of the Standards Board regarding Petition 513 to convene an advisory committee to consider possible amendments to Title 8, Section 5193 of the blood borne pathogen standard as recommended by the petition and the Board staff. Clarification of the required protections for performers in the adult film industry along with language that improves the ability of public health departments to conduct disease control activities will go a long way towards improving the health of adult film performers, their partners, and the larger community.
David Mech returned to state that contract girls such as Ms. Angela Armani represent less than five percent of the total adult film performer population. Contract girls are what all girls in the business aspire to be. Their contracts are negotiated beforehand, they make a fixed, limited, usually small number of movies per year, and they select their partners. It is a very good job in the adult business. Most of their time is spent doing promotion and marketing. The clear majority of performers are the independent contractors that spoke earlier in support of the petition. In addition, there is no difference between the testing and protections before and since the 2004 HIV outbreak. He stated that if a performer does only one scene and leaves the business, there is no follow-up. Mr. Mech further stated that no one in favor of the petition is advocating the use of latex gloves and goggles. They are asking for condom use for vaginal and anal penetration, and basic things that people do in everyday life. He emphasized that he is an active performer shooting scenes in California, and that a lot of active performers do support the petition.
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For the full testimony of everyone at the hearing, as well as comments by the Cal/OSHA Board and others present, please click here.
