California’s Condom Mandate: Some Things Shouldn’t Be Up for a Vote

Some things should not be up for a vote. Among those things is whether consenting adults should be required to use condoms when they have sex. For many years, the AIDS Healthcare Foundation (AHF) has called for a mandate on condoms in adult films and recently collected enough signatures to add their legislation to the next city ballot. And last week the LA city council voted in favor of denying permits to adult films that do not abide by the condom requirement. While these efforts may be well-intentioned, a condom mandate violates actors’ rights to free speech, association, and choice—and likely will be counterproductive.

Current national workplace safety standards, as stipulated by the Occupational Safety and Health Administration (OSHA), require employers to provide personal protective equipment (PPE) for workers in hazardous situations—for example, hard hats for construction workers. Notably, OSHA laws provide exemptions for workers who refuse to use the PPE on religious grounds. Unlike many other OSHA protection rules, this condom mandate does not allow for any flexibility in the type of protection workers may use: it requires some form of barrier protection and would not allow actors to voluntarily not use the protection (though I doubt any actor would seek a religious exemption). While sexually transmitted infection is certainly a risk on adult film sets, a condom mandate is a one-size-fits-all solution that certainly doesn’t “fit all”.

As many in and out of adult film industry have noted, the mandate prevents actors and filmmakers from expressing themselves as they wish—a clear violation of the First Amendment. While “obscene” speech is not guaranteed the same constitutional protection as other types of expression, the adult industry as a whole cannot be lumped into the obscenity category. The “Miller Test,” which is used to determine obscenity based on the 1973 Supreme Court case, Miller v California, would have to be applied to every film before the state of California would have the right to restrict their expression.

Tying the issuance of film permits for adult films to a condom mandate would mean that for every film LA wanted to stop, the state would need to prove that “the average person, applying contemporary community standards,” would find that the work, taken as a whole, “appeals to the prurient interest,” and “depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,” and “lacks serious literary, artistic, political or scientific value.”  It’s unlikely that the city of Los Angeles would spend the time and money investigating the artistic merits of each film and less likely that producers will be willing to spend the money to fight a court battle over each movie.

Producers of adult films, like employers in other industries, are not obligated to hire workers who refuse to do the tasks they ask for. Condom mandate proponents argue that this has resulted in actors being pressured into not using condoms. Yet, the mandate assumes that if producers had no problem with it all actors would choose to utilize barrier protection. Statements from many adult film actors show that this is not the case. As Justine Joli, an adult film actress specializing in all-female films noted, the mandate would likely bring an end to her genre, rendering the films “unsexy” and unmarketable.

Actors have also stated their belief that condom usage on set is counterproductive in preventing disease transmission. As director Ernest Greene commented on his blog, condoms could increase the chances of transmitting sexually transmitted infections (STIs). “A single scene amounts to over two hours of intercourse…condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs,” he states.

Furthermore, the condom mandate would likely do away with an industry safety measure that has proven effective in reducing STI transmission. The measure seeks to have adult film permits depend on whether producers comply with California employee safety standards. This would change actors’ status to employee from independent contractor. Such a change worries actress Ela Darling, who believes the change would end industry self-imposed STD testing procedures, which would then be considered “workplace discrimination,” as the Americans with Disability Act (ADA) generally prohibits employers from requiring HIV tests prior to making a job offer.

The AIDS Healthcare Foundation’s campaign, however well-intentioned, has not improved the safety of adult film actors. If anything, it has backfired. One of the organization’s most recent “victories” was in forcing the closure of the Adult Industry Medical Health Care Foundation, a health clinic that would conduct testing and maintain a database of adult actors’ health status. While it didn’t stop every case, it significantly reduced STI transmission in the industry more than any regulation ever could.

If the measure passes or the city of LA chooses to enforce a condom mandate on its own, the increased cost and burden on production will certainly drive many producers to other states, while others will simply produce “amateur” films, which have fewer health and safety procedures than the current industry.

This effort to force condoms onto the adult film industry is waste of time and money. Worst of all, it hurts the people it supposedly aims to protect and threatens to chip away at our most fundamental rights, the freedom of expression and individual choice.


Photo Credit: Medical Daily, Mario Anzuoni