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Bareback Mountain... Out of a Molehill

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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.