Proposition 60: A law forcing porn stars to wear condoms during filming can only be a good thing, right? Wrong

It’s rare to find a thorny, complex issue that unites the Republican and Democratic parties, but Proposition 60 does.

It’s a bill that has also united some of the largest newspapers in California, including the Los Angeles Times and San Francisco Chronicle.

On 8 November, Californians will go to the ballot box to either vote in or reject Proposition 60, a law requiring adult performers to wear condoms while filming sex scenes.

The law is sponsored by Michael Weinstein, the President of the Aids Healthcare Foundation. The Aids Healthcare Foundation did not respond to requests for comment from The Independent.

A law forcing porn stars to wear condoms in every sex scene can only be a good thing, right? Wrong, at least according to both political parties, leading newspapers and adult performers.

The problem, they say, is not with the concept of the law - ostensibly reducing the transmission of sexual diseases - but in the way it would be enforced.

[It] requires performers in adult films to use condoms during filming of sexual intercourse. Requires producers of adult films to pay for performer vaccinations, testing, and medical examinations related to sexually transmitted infections. Requires producers to obtain state health license at beginning of filming and to post condom requirement at film sites. Imposes liability on producers for violations, on certain distributors, on performers if they have a financial interest in the violating film, and on talent agents who knowingly refer performers to noncomplying producers. Permits state, performers, or any state resident to enforce violations.

Proposition 60 in a nutshell: a tightening of a pre-existing measure, with one controversial catch

Adult performers in California have been required to wear condoms during filming since 1992, but this is only enforced if someone notifies the Division of Occupational Safety and Health, the body responsible for taking action. Only four production companies have been cited for violations from 2014 to 2015. Proposition 60 is effectively the tightening of this pre-existing law, but with one important catch: any Californian citizen would have the right to sue a producer if condoms were not used in an adult film. There are 38 million people living in the state.

This measure has been branded “legalised harassment” by Mia Li, an adult performer, who says it allows anyone with a laptop to sue her, collect 25 per cent of the penalties against her - and then recoup their legal fees from her as well. The rest of the penalty paid would go to the state.

Vote Yes for Proposition 60

Of course, its supporters would disagree. “Performers can NOT be sued,” the Vote Yes for Prop 60 website claims. “Section 4, subsection 5 of Prop 60 states: 'Liability under this Act shall not apply to adult film performers, bona-fide employees, individuals providing independent contracting services, or production volunteers.'”

But performers are liable to be sued if they have financial interests in the films they perform in. Tasha Reign, an adult performer campaigning against Proposition 60, is one of a number of performers who also produces her own films and would, therefore, be at risk. In an industry becoming harder to monetise because of a glut of free adult content and lower rates of pay as a result, adult actors are increasingly investing in the films they appear in. She says she could be sued for up to $75,000 per offence under Proposition 60.

Exposed

Performers also argue they will be left vulnerable to stalkers and harassment by having their details made public to those launching suits against them.

Reign told The Independent: “My safety is now on the line because the proposition allows for California citizens to sue adult performers or anyone involved in the adult video, and with incentive to sue - they’re going to get paid.

"And when they do, they gain access to our home addresses, which I am terrified of. I already receive death threats and things like that. This will open up a door for a whole other issue, and I’m very scared about that."

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‘Heavy handed’

The Los Angeles Times has come out strongly against Proposition 60, which says the “heavy handed” measure would make every Californian a “potential condom cop”. It also warns this law could drive the industry out of California and with it the loss of millons in tax revenue.

“This is an extreme approach — and demonstrably counterproductive. We know this from the experience of Measure B, passed by Los Angeles County voters in 2012 to enforce condom use through the county’s film permitting process. The multi-billion-dollar adult-film community is largely concentrated in Los Angeles. Or at least it was before Measure B.

“Proposition 60 is far worse than Measure B not just because of its unusual provision allowing any Californian to sue and collect damages without having to show that they suffered any harm.

"It also extends the financial liability to, potentially, small-time performers who produce and distribute their own content (and who are unlikely to have been coerced into not wearing condoms). There’s also the possibility that some people might use the new law to harass adult-film performers.”

Reign agrees the introduction of Proposition 60 will drive porn underground where it cannot be regulated, becoming more dangerous. Producing pornography is technically illegal in every state except California and New Hampshire.

“They are criminalising the adult industry. The whole industry is going to leave California. I don’t think this is necessarily a safe thing. I think that it will go underground without the regulations that we have in place. I absolutely think this is putting performers in danger in a way that it is taking us years and years backwards. Finally, the adult industry is not a hidden thing. We are out in the public sphere, we are regulated. People are held accountable and now I just feel like this is something that is going to make the industry turn their back on that.”

How would it be enforced?

This is particularly unclear. Under Proposition 60, condoms would not have to be visible in films, which raises questions about how violations would be spotted by those outside of production.

California's Legislative Analyst's office states: "This measure states that the condoms do not have to be visible in films distributed to consumers. However, adult film producers would need to be able to prove that performers actually used condoms."

Film makers would also need to pay a fee to obtain a licence from the Division of Occupational Safety and Health every two years.

A women's rights issue

Reign believes Proposition 60 is a woman's rights issue because it allows another man to mandate over her body. "I don’t want to be told what contraceptives I need to use or in my life, ever, ever ever. I’m a sex worker, I should be treated as a sex worker and be asked how I want to have sex, what kind of safety precautions I [want to] use.

"I already use a huge safety precaution: I get tested every 14 days. I’m getting tested more than any other person I know in any other industry. I’ve been working in the industry for seven years and I have never caught an STI. We use something called the PASS system. I only ever work with people who are also tested by the same facility. That makes me feel safe and I should have a choice to use a condom and not use a condom.

“We want to have a voice in the laws that pass that govern our choices, our bodies and our careers."

Education

Weinstein told Mother Jones in August enforcing condom use was also an educational issue. ”Many young people get their sex education from performers," he argued. "They get the message that the only kind of sex is unsafe.“

But Reign says the US educational system should be responsible for teaching young people about safe sex, not her.

"It doesn’t seem right or democratic or ok to put the sex education on adult performers when that’s not what I signed up for. It’s upsetting that America doesn’t have a system that is relevant and that doesn’t make sense for its kids because we live in a very puritanical country and that should be changed, but that doesn’t have to do with me as an adult entertainer. Trying to scapegoat the adult industry and trying to put that pressure and responsibility on my shoulders is ludicrous."