For decades civil liberties advocates fought to decriminalize private, consensual sexual behavior among those above the legal age of consent. In the infamous 1987 Bowers v. Hardwick Supreme Court case, police entered Michael Hardwick's home based on an invalid warrant, observed him engaging in consensual adult sexual conduct, and arrested him.
In a 5-4 decision, the Court held that Hardwick had no right to engage in private, consensual sexual behavior with someone above the legal age of consent, and the police did nothing wrong. The Bowers decision led to the "largest mass arrest ever to take place at the [C]ourt and the largest in Washington since the Vietnam era," as police arrested more than 600 people who were protesting the decision. Bowers remained the law until 2003, when the Court overruled Bowers in Lawrence v. Texas.
Apparently, the self-described "largest provider of HIV/AIDS medical care in the U.S.," the Los Angeles-based AIDS Healthcare Foundation (AHF), a group with well over 400,000 "likes" on Facebook, wants to lead us back to the days of Bowers.
In essence, AHF wants to criminalize for-profit videos depicting unprotected sex (including sex acts also known as "barebacking," perhaps best explained by SUNY Buffalo professor Tim Dean in his book Unlimited Intimacy).
AHF's proposed addition to the Los Angeles City zoning code 12.22.1(A) [Exhibit A] basically says that anyone making videos of any sex act (including oral sex and the use of dildos) is deemed a "producer" of an "adult film." Videoing sexual conduct for profit would require an "adult film producer" to obtain a government permit. Part of the permit fees would pay for "enforcement." And enforcement would allow the government to conduct "periodic inspections" of the sex acts being filmed.
The California Division of Occupational Safety and Health Legal Unit of Southern California wrote to the L.A. City Council, stating that "any filming [of, among other things, commercial bareback sex] done without a permit would be a crime."
In an apparent desire to expand the nanny state to the nanny city by criminalizing private, consensual sexual behavior among persons above the legal age of consent, AHF's president, Michael Weinstein, claimed that Los Angeles "county has a primary responsibility of protecting the public health." But reading the Los Angeles County charter evidences that Weinstein's claim regarding the county's primary responsibility is simply untrue.
Weinstein and four other petition sponsors also employed some troubling reasoning supporting their proposed ordinance (the "Findings and Declarations" portion of Exhibit A).
For example, one declaration supporting the criminalization of this private, commercial sexual behavior claims, "The HIV/AIDS crisis, and the ongoing epidemic of sexually transmitted infections as a result of the making of adult films, has caused a negative impact on public health and the quality of life of citizens living in Los Angeles."
Although Weinstein and his acolytes apparently care little about the quality of life for non-citizens, such as people with legal visas, a more important phenomenon occurs when you change the four words "making of adult films" to "activities of gay people." Then reread that sentence -- a sentence designed to criminalize private, consensual, adult sexual behavior -- and then think about Bowers.
Another of Weinstein's declarations supporting criminalizing this activity claims that "the Los Angeles County Department of Public Health has documented widespread transmission of sexually transmitted infections associated with the activities of the adult film industry within the City of Los Angeles." Replace the words "adult film industry" with "homosexuals," reread the sentence, think about Bowers, and you probably get the point.
Section 2(b)(f) of the proposed ordinance claims, "Producers of adult films are required by California Code of Regulations Title 8, Section 5193 to use barrier protection, including condoms, to protect employees during production of adult films" (emphasis added). But the word "condom" never appears in Code Section 5193.
Nonetheless, Weinstein's group has collected sufficient signatures to place the measure on the ballot in June.
Last month the L.A. City Attorney, Carmen A. Trutanich, sued Weinstein and four others, stating (paragraph 14) that the proposed ordinance is unconstitutional and (paragraph 17) that attempting to obtain this judgment now, rather than post-election, "is necessary to avoid the needless and wasteful expenditure of public resources made in connection with a measure which the voters have no power to adopt." The cost could be more than $4 million of taxpayer money in a cash-strapped city and state.
In its editorial this week supporting Weinstein's efforts, the Los Angeles Times claimed that this proposed regulation was similar to banning smoking in restaurants to protect workers in the service industry. But smoking or inhaling secondary smoke was not the primary condition of the compensation arrangement for those working in restaurants. Here, however, having unprotected sex is the condition of the compensation arrangement. As a result, one would expect the contracting parties to negotiate the risk/reward balance, with barebacking performers receiving significantly greater compensation than safe-sex performers. And assuming that consenting adults are reasonably informed decision makers, people should be left to make their own bodily decisions, free from government interference and "enforcement."
In this age of [insert adult website name here]tube.com, nearly anyone can be a "producer" of for-profit "adult films" simply by uploading homemade videos and requiring that people pay to view those videos. Weinstein's initiative could quickly make those people -- queer, straight, or anywhere in between -- criminals.
Many advocates fought too hard to overturn Bowers and keep the coercive threat of government force out of the private places we use for sex (read both ways).
Reducing the number of HIV infections (education!) and fighting AIDS (research!) are noble goals I embrace, but not to the point of enabling the government to conduct random "enforcement" inspections on private property to see if a condom resides inside a consenting adult's orifices. If you thought TSA enforcement was bad, just wait.
People above the age of consent should understand the potential risks and rewards involved in consensual, private sexual activities, and each of us should take responsibility for our individual actions rather than resorting to majority-vote criminalization and government enforcement.
Otherwise, bareback or not, we all get screwed.
Follow David Groshoff on Twitter: www.twitter.com/davidgroshoff
Kellee Terrell: Why the Porn Industry's HIV Problem Is Our Problem, Too
Governments have a right to legislate about working conditions in order to protect the workforce (such as mandating hard hats on building sites). L.A. has done the right thing by legislating to protect porn workers.
No one is questioning the right of government to regulate safety in workplaces. This is about HOW to best regulate; and how those who will bear the full burden of such regulation (the performers themselves) should have some say in how to best protect themselves.
Also....porn may not be private, but when people make tapes of themselves having sex and they end up being released to the public, will they be as subjected to this law as porn producers in LA?? Remember, this is as much about promoting condom usage as "safer sex" as it is "protecting workers". Would you then favor raiding private homes for people who make amateur tapes for their own home websites, too??
Funny how coerced social engineering that would be rightfully disdained if coming from the Christian Right is totally justified if it has a "liberal" justification.
Making *anything* optional means that it will be ignored when it hits profits or slows things down, especially if when there is a prevelant machismo "safety stuff is for wimps" attitude. We found this in the UK with seatbelts until they were made compulsory, and still find it with gig venue staff shunning earplugs despite the risk to their hearing from loud music. Therefore, condoms must be mandatory or they will not be used.
Condomless straight porn is deeply sexist because a) the entire burden of birth control is placed onto the woman, and b) only women can get cervical cancer (which kills: look up Jade Goody) so condomless sex disproportionately harms women. The sexual inequality of condomless porn *alone* should justify mandatory condoms in straight porn, with the rule then being extended to gay porn because gay and straight people should be equal before the law.
>> "Would you then favor raiding private homes for people who make amateur tapes for their own home websites, too??"
Yes, because as soon as they use their home for a business operation, whether that be running a plumbing business or shooting skin flicks, it becomes a business premises.
By that rational, we should stop sending our kids to school because, by your reckoning, school is "coerced social engineering". After all, the curriculum, like the pro-condom message, is based on verifiable facts (e.g. how to spell a word, how electrity works) and, like the pro-condom message, influences people's behaviour. Teachers have to teach certain material, like it or not, and kids are forced to go to school.
The right to free expression does not give a right to endanger your own or your co-stars' health in the process.
As an aside, I find watching other people being put at risk of their health to be repulsive and so am turned off by condomless porn. I look forward to much more porn that I *do* like being made because of this law.
this really cannot be allowed to come to be, or if it does, it needs to be struck down immediately. what's next? mandating that people cannot perform voluntary extreme body modifications and when i say extreme i mean like splitting one's tongue, or genital mutilation, or even limb removal.
at that rate, let's allow the religious extremist to legislate that gender reassignment surgery is not acceptable?
and how about we arrest all HIV positive people who have sex because let's face it, they're vectors and we might as well extract them from the general population and prevent them from interacting with HIV free people.
i could go on and on with this line of reasoning - this is a door that must not be permitted to open.
I think that once a movie is for a profit(even a small..pay per click) then, protection is warranted and must be legislated. Large porn production co'.s do test their actors regularly. A small, basement porn set up probably/sadly won't(they won't have the "star" factor). I don't think this is a slippery slope and to replace Porn with homosexual..etc..isn't a valid argument; nor is Bowers. A clever producer "could" actually invent a very sexy way to have the condom put on..make THAT a dirty sexy act..why not try..be the first on the block?
Okay..I don't watch porn so I've no dog in this fight...but safety is so important. So is liberty but this is NOT the issue..Let's get gay marriage approved first! (I'm straight but do NOT get why it's so feared)
let's just be frank. sex with out condoms is more pleasurable, and you don't need a porn to tell you that.
exercising cultural brainwashing might abate this supposed trend towards condomless sex in the general pubic, however, i sincerely doubt that it will do anything really other than cause a lot of problems and serve as a basis for even more draconian public health measures.
consider - there are probably literally hundreds of thousands if not millions of bareback videos that currently exist for sale and distribution across the web. stopping production is not going to do much other than piss people off. people will just google "bareback" and get what they want. furthermore, people will do what they want. if they don't want to wear condoms, they're not going to wear condoms. trying to brainwash people with cultural mass media programming will fail.
Also I think Bowers is a false comparison. Unless of course you replace it with the word 'homosexual' -- seriously, that line of thought seemed close to self-parody in Groshoff's often thoughtful writing.
why don't we pull all alcohol adverts? surely doing so would cut back on drinking? why don't we have unilateral bans on all portrayals of smoking and drinking in ANY media format - t.v., movies, whatever.
grow up. people deserve the right to choose their path, whether that path is repulsive to you or not - no one is holding a gun to your head an saying that you must engage in unprotected sex and risk HIV infection.
I agree that no one should take HIV/AIDS lightly. Having said that, in this situation, I believe that education and risk/reward compensation is far more effective than government enforcement relative to reasonably informed consenting adult behavioral choices that may offend others.
Similarly, in response to some of the below inquiries, yes, my belief in education and risk/reward compensation versus government enforcement regarding reasonably informed consenting adult behavioral choices includes electricians, high rise window washers, welders, asbestos workers, people wearing seatbelts in their cars, and probably any other hypothetical inquiry you may pose.
AHF's public health argument also fails on similar grounds: yes tattoo shops are required to have a health department permit, but putting a sink in a tattoo shop doesn't change the message on the tattoo.
If someone does construction on their own land/in their own home, are they obliged to wear a hard hat? Is someone who does construction work for a living required to wear a hard hat?
If sex worker is a profession (it is), then should sex workers be subject to the same safety-driven regulations as other professions with a potential risk?
I don't see anyone intended to enforce consenting adults in the privacy of their own home/relationships to always use a condom. The issue here is can we/should we protect those who earn a living from how they use their body? Precedent in many other professions suggest that we can.
If a sex act is filmed and then sold, then privacy has been knowingly surrendered and the nature of the act itself has changed.
The column reads, "In this age of [insert adult website name here]tube.com, nearly anyone can be a "producer" of for-profit "adult films" simply by uploading homemade videos and requiring that people pay to view those videos. Weinstein's initiative could quickly make those people -- queer, straight, or anywhere in between -- criminals."
I don't see a problem.
1. Electricians use insulated tools
2. High rise window washers wear harnesses
3. Wielders wear goggles
4. Asbestos workers wear breathing protectors
If the answer is yes, then what is the difference between these worker's safety regulations and requiring that sex performers wear condoms?
Are some of these types of laws excessive and ineffective? Yessiree!
I think there still should be legislation regarding this issue. Either the performers wear condoms while employees of a business... or be employed as outside contractors, responsible for their own medical expenses incurred while on the job.
Even then, I think there's an issue of the business's liability. Workmans' comp? There were several cases of young gay performers contracting std's and courts ruling in their favor in Europe. I think someone said it before, with 'high risk pay' - This is the sort of thing that stuntmen do.
This isn't a new issue - it's been raging for *years* between the good 'ole boys like Titan, Falcon, Lucas Ent. and the bulls of the market as they come and go. This might not be *the* answer, but I can't say that I'm unhappy that they're trying to find a way to cope with the industry, instead of just looking for ways to destroy it.
However, if you aren't certain of the health status of the person you are going to have sex with, it's always better to use a condom. This relates especially to situations where strangers have sex with each other.
Ultimately, it comes down to the context of your sexual behavior. If you are in a monogamous relationship and are both healthy, bareback sex is fine. If your sex life is dominated by casual encounters with total strangers, you'd be better off using a condom.
In fact, if it were not for the fact that the only challenge to this important public safety measure comes from Trutanich, it might even have a shred of credibility. But when you mention the name 'Trutanich' in LA's legal circles, credibility is the last thing that comes to mind.
We've seen this self-promoting former plaintiff's attorney mislead us on numerous occasions, perhaps most fundamentally over his sworn signed promise not to run for District Attorney!
We watched him claim there were 'criminal aspects' to the way AEG handled the Michael Jackson memorial at the Staples Center, only to drop his 'investigation' without comment, but coincidentally with a contribution of a bunch of free Lady Gaga tickets.
He has threatened to put political protesters in jail for a year because they were 'professional' protesters.
This bully has threatened to deny First Amendment rights to his political rival, Deputy District Attorney Alan Jackson who he threatened to sue because Jackson dared to use the 'Fair Use Doctrine' in a political advertisement called 'Election Hangover Part II' parodying Trutanich for reneging on his campaign promises.
David, you are wrong to oppose this measure and even more wrong to use Trutanich as the champion of your cause. Trutanich is as fake as a nine dollar bill.
The problem I see is that some people may not be aware they are being filmed, and/or unaware the film has been posted on an internet site for profit. There is also going to be a difficult enforcement issue, since it would have to be proved that the filming was done in Los Angeles.