Sometimes I'd Rather Be Wrong

Ernest Greene
Last time around I cautioned against complacency in the face of a seemingly improving political climate and warned that regulation might soon replace prosecution as our most troublesome form of official repression. How was I to know that squeaky-clean, by-the-book content producer Naughty America would receive a surprise visit from representatives of Cal-OSHA the day after my column appeared?

Though there were no immediate consequences, it was certainly a shot across the bow, clearly intended to signal that, unlike the lame ducks of Dubya's Justice Department, state regulators wouldn't necessarily focus on small, marginal companies specializing in edgy material.

My crystal ball was cloudier in predicting that the prohibition-disguised-as-regulation approach wouldn't come to fruition until after the coming election. Full disclosure: in my seven terms on AIM's board of directors, I had my share of run-ins with some of the players in the events described below and I have no doubt my interpretation of recent developments will be viewed in that light.

Even before the Cal-OSHA drop-by, other public-sector initiatives were already in operation. Back in June, Dr. Peter Kerndt, director of STD programs for the L.A. County Department of Health Services, issued a broadside online at the Public Library of Science's medical site, PloS Medicine. In collaboration with colleague Corita R. Grudzen, Kerndt made his strongest case for new federal laws to mandate the use of condoms in all forms of sexually explicit production.

By now, the tormented logic through which Kerndt arrived at this call for a sweeping and unprecedented governmental intervention into the day-to-day operations of an industry that demonstrates no urgent threat to the general health of its working population or the greater society, has been fisked and filleted by industry commentators ad nauseum, but the threat it represents hasn't magically gone away.

Kerndt argues forcefully that our existing voluntary safeguards, including the most rigorous and successful STD testing regime in the world, are inadequate. Only mandatory condoms for all will create "a level playing field" in which consumer demand will have to be satisfied with all-condom products because no alternative will exist. Much as I would prefer to believe that this kind of command-economy thinking went out with Stalin, it's the more benign element of Kerndt's wider agenda.

While claiming to have no broader brief than workplace safety, Kerndt's scheme would include prohibiting the distribution of non-condom porn by federal statute and would further require the reclassification of all porn performers as employees rather than independent contractors as most producers recognize them to be, thereby subjecting all concerned to the supervision of agencies like Cal-OSHA, whose jurisdiction is statutorily limited to employees, as defined by existing labor standards.

Thus, not only would the content of X-rated products be subject to blanket censorship, presumably with criminal penalties attached, for failure to adhere to the contemplated all-condom-all-the-time legislation, the relationship of producers and performers would be entirely redesigned in a manner that would expose the former to greater liability and the latter to greater jeopardy.

Even more ominous, if that's possible, is what Kerndt doesn't tell the naïve reader about his grand plan. Virtually all states, including California, forbid the requirement of an HIV test as a condition of employment. The laudable purpose of this policy is to prevent discrimination against HIV-positive employees in ordinary workplaces. However, in the workplaces where porn is made, the substitution of even the most stringent barrier protections for regular HIV testing is a potentially murderous science project.

If producers are to treat performers as employees, it will become illegal to demand HIV tests prior to shooting. Though performers could theoretically exchange tests among themselves voluntarily, any who refused to work with those unwilling to provide such tests would themselves be subject to termination.

No formal standard of testing intervals or of test result verification could be established. Theoretically, a producer with knowledge of a performer's HIV-positive status would be subject to employment discrimination proceedings for refusing to hire that performer as long as barrier safeguards were properly observed.

At the investigative hearing conducted on behalf of the state legislature after the detection of four HIV transmissions in the porn industry in 2004, the ACLU delegation present made clear that an effort to exempt our industry from the anti-discrimination standard would be fiercely and successfully resisted. In other words, you can require condoms or testing but not both.

This would be both an actual (in economic terms) and potential (in health terms) catastrophe for all of us, but that's not really Dr. Kerndt's concern, which he makes chillingly clear in his jeremiad.

"The portrayal of unsafe sex in adult films," Kerndt warns, "may also influence viewer behavior. In the same way that images of smoking in films romanticize tobacco use, viewers of these adult films may idealize unprotected sex. The increasingly high-risk sexual behavior viewed by large audiences on TV and the Internet could decrease condom use. Requiring condoms may influence viewers to see them as normative or even sexually appealing, and devalue unsafe sex. With the growing accessibility of adult film to mainstream America, portrayals of condom use onscreen could increase condom use among viewers, thereby promoting public health."

In other words, whatever the rubric, the argument still comes down to what kind of sexual conduct can legally be depicted. Whether the claimed concern is public health or pubic health, there will always be public servants who believe they serve the public's best interest by deciding on its behalf what it should be allowed to see.

The battle may be moving to a new arena, but the issue is still the same: the right of consenting adults to make and view sexually explicit acts that would be perfectly legal in the privacy of their own homes. Unless Dr. Kerndt wishes U.S. Congress to enact a mandatory condom law for the entire sexually active population, what he proposes is just another attempt to criminalize our industry not for what it actually does, but rather for what it is.