SAN JOSE, Calif. — Call it a condom conundrum. On Nov. 8, California voters will decide whether to make the state famous for its film industry the first to force protective prophylactics on X-rated actors.
Surveys suggest public sympathy for Proposition 60’s condom requirement. According to a recent Los Angeles Times poll, 55 percent of voters would vote yes, which is similar to the 57 percent who passed a similar Los Angeles County condom law in 2012.
“I always thought, ‘They’re having sex with a dozen people a day, why aren’t they using condoms?’” said Andrea Battles, a clerk at the L’Amour Shoppe in Santa Clara. “People would still buy porn. Sex sells. It’s a good idea.”
But Proposition 60 has drawn considerable opposition, and not just from California’s multibillion-dollar porn industry that spawned such adult classics as the Mitchell brothers’ 1972 “Behind the Green Door,” set and filmed in San Francisco.
The initiative has garnered unusual bipartisan opposition from the state’s Republican and Democratic parties, as well as Libertarians and the Adult Performer Advocacy Committee. Also opposed are gay rights groups such as Equality California and the Transgender Law Center, the Free Speech Coalition and the San Francisco AIDS Foundation.
Critics argue the proposition is poorly drafted and would allow anyone to sue adult film performers and on-set crew members, threatening individual privacy and safety.
Producers and performers say it’s a needless bureaucratic intrusion on freedom that will simply chase business out of the state, much like Los Angeles County’s 4-year-old law prompted filmmakers to flee to neighboring suburbs. That could cost taxpayers “several million dollars per year” in tax revenue, according to the legislative analyst.
“We’re selling entertainment, and it’s not entertaining for people to see a sex scene shot with rules and restrictions that make it less exciting,” said John Stagliano, a longtime Los Angeles-based producer and distributor of pornography.
The Los Angeles County condom law — spearheaded by the same group backing Prop. 60 — has not been enforced, but delivered results nonetheless. According to Film L.A., which tracks data related to the industry, adult film permits in the county that approached 500 in 2012 plummeted to just 26 last year.
“A lot, maybe half, moved out of the county,” said Mike Stabile of the Free Speech Coalition, a porn industry advocacy group. “It’s not hard to shoot somewhere else — they’ll just get an Airbnb in Oxnard.”
Opponents, however, have had a hard time raising funds. By mid-September, they had raised $315,485, while the Prop. 60 campaign has raised $1.98 million, more than six times that amount.
Leading the Prop. 60 charge is the deep-pocketed and respected AIDS Healthcare Foundation and its controversial leader, Michael Weinstein. The foundation says it’s saving an exploited workforce that’s pressured into dangerous sex in the name of profit.
Joining in support are groups including the American Sexual Health Association, California Academy of Preventive Medicine and the California State Association of Occupational Health Nurses.
“They’re taking advantage of young people who have this mentality that they’ll live forever and are willing to take risks,” said Rick Taylor, spokesman for the campaign.
As it turns out, federal regulations through the Occupational Safety and Health Administration already require condom use for X-rated actors in the same way health workers must use gloves and other protection when dealing with body fluids and other potential biohazards. OSHA has fined companies for filming without the proper protection, usually in response to a complaint from Weinstein’s organization. CalOSHA recently fined one producer $34,400, another $78,000.
But Prop. 60, advocates say, gives the condom requirement more teeth.
“CalOSHA is a good friend, and they do protect workers,” Taylor said. “We just wish they could do more.”
Weinstein is a longtime AIDS activist who has been called as relentless as he is effective in his mission to stanch infection and help the afflicted. He saw friends around him die and helped defeat a 1986 ballot measure that would have allowed people with the disease to be quarantined.
But he’s also butted heads with other AIDS nonprofits and LGBT community groups, which accuse him of being a “condom Nazi” who isn’t open to other methods of virus control.
John Schwada, communications director for the Pro-60 campaign, said Weinstein “just happens to be passionate and has strong views and he believes in his cause.”
While the proposition states that performers themselves won’t be sued, those who also produce porn are fair game. In the internet age, a lot of performers are considered producers, with their own websites, webcam shows, custom videos, Skype live-chats or other ventures.
Still, the condom crusade has failed to win over the very performers whose safety it champions. They say it’s industry practice to test for HIV infection every two weeks. There hasn’t been a documented case of HIV transmission in heterosexual porn since 2004. There was a Nevada case involving a gay porn shoot in 2014 in which an actor who had tested negative later tested positive.
The federal Centers for Disease Control and Prevention stated in a report on the incident that the infected performer “likely subsequently infected both a coworker during the second film production and a non-work-related partner.” The report concluded that “testing alone is not sufficient to prevent HIV transmission.”