Tag: FSC

Condoms & The First Amendment…

Los Angeles County’s Measure B, the “Condoms in Porn” law, has caused much discussion in the media as well as the industry as to whether such a mandate is a violation of a performer and producer’s First Amendment free speech rights. Whether it is a violation of the U.S. Constitution will be left to the courts to decide. It is, without question, a law that can be challenged. The United States’ Constitution is the supreme law of the land. Which means no other law can violate the rights guaranteed by the Constitution – not even workers’ safety laws.

In regulating commercial speech the government has to show that condom law passes what is known as the Central Hudson test ( Please see: http://itlaw.wikia.com/wiki/Commercial_speech ). In regards to free speech and pornography, the United States’ Supreme Court has indeed ruled that hardcore pornography is legal and in fact is protected by the First Amendment and therefore entitled to protection under the Constitution ( Please see: http://en.wikipedia.org/wiki/Miller_v._California ).

Many have also questioned who holds such free speech rights – the producers or the performers ? The answer is that both producers and performers hold equal rights in that regard. Performers, like dancers in gentlemen’s clubs, do in fact express themselves while performing in an adult scene or movie. There are several U.S. Supreme Court decisions that hold a dancer’s nude dancing is in fact expressive free speech. ( Please see: http://en.wikipedia.org/wiki/Barnes_v._Glen_Theatre,_Inc. )

Can Free Speech Be Restricted ?

Commercial free speech can be regulated. There are two types of restrictions on commercial free speech, content and non-content based restrictions. An example of content based restriction would be a law that prohibited a newspaper from publishing the name of a rape victim. An example of a non-content based restriction would be zoning laws regulating the time, manner and place a business owner could operate a gentlemen’s club within a city or county. Content based restrictions require the court to impose a “strict scrutiny” test, meaning that the law has to promote a compelling governmental interest and it has to do so in the least restrictive means possible. For non-content based restrictions the court will used what is called “intermediate scrutiny,” meaning the law has to promote a significant, substantial or important government interest and it must be done in a way that is narrowly tailored to the governmental interest. Under intermediate scrutiny there are basically two tests the court uses 1) time, place and manner and 2) incidental, which means regulations that are aimed at conduct that is not speech but do infringe on speech.

A government mandated condom law would be a regulation that is not aimed at actual speech but rather conduct however it does infringe on the free speech rights of the producers and performers. In U.S. Supreme Court cases that have primarily been focused on gentlemen’s clubs, those looking to restrict nude dancing have used the argument that regulations imposed on them are merely trying to alleviate the “secondary effects” that gentlemen’s clubs supposedly cause such as crime, prostitution and blight on the neighborhood they are located in. I imagine that the government may also try to use a secondary effects argument in favor of the condom law, if it were ever to be challenged. I believe that they will claim that condoms in porn will protect the health of the general public since members of the adult industry will spread disease to those in the general public. Whether this argument will work is unknown.

None the less, a government mandated condom law is a restriction of free speech of both performers and producers. Since it is not content based, if challenged in court, it would receive intermediate scrutiny and the court would examine whether the government has a significant, substantial or important governmental interest and whether the law is narrowly tailored to those goals.

Therefore the question will be is the health and safety of workers in the adult industry a significant, substantial or important governmental interest. And if so, is the condom law narrowly tailored to promoting that goal. In other words does the law restrict the least possible amount of speech to accomplish the goal of protecting adult industry workers.

More than likely the courts will find that the health and safety of adult performers are an important governmental interest. The argument on behalf of the industry would probably be that STI testing achieves the same goal of the condom mandate without restricting any speech.

The industry could also make the argument that only the state of California has the ability to regulate workplace safety and therefore the law exceeds the power of Los Angeles County or any city that adopts a similar law such as the City of Los Angeles Safer Sex in Adult Films Ordinance.

In the coming weeks I will be writing more on this subject. However, if you are interested in this issue I suggest that you do some research and educate yourself. Especially if you are a producer or performer in the industry. You might be interviewed by someone in the media in the coming weeks as Election Day approaches.

A good starting primer on First Amendment issues is attached to this article. It was written by an attorney for the Congressional Research Service in October 2009. It basically states how the government can regulate free speech and how it needs to go about doing it. Its an inside look inside their “playbook.”

FreeSpeechPrimer

 

0

Performers: Can Condoms Cause Cancer ?

As a former employment and workers’ compensation attorney I often had to research the potential side-effects of different chemicals my clients were exposed to while “on-the-job.” Since Cal-OSHA, the City of Los Angeles and now possibly the County of Los Angeles all want to make condoms mandatory for the industry one of the first questions that everyone should be asking is – Are condoms safe ?

I realize that seems like a strange question to ask since the motivating idea behind the use of condoms is to make the industry more safe from the spread of different STDs. However, the question needs to be asked since condoms may in fact do more harm than good.

I experienced this same issue several years ago, as an attorney for employers in California, when there was a push to require back braces for those that worked in warehouses. The common belief was that a back brace worn by an employee would give that employee more back support and thus cut down the rate and severity of low back injuries in the state’s workforce. It seemed like a reasonable position. Until studies were performed that showed that wearing a back brace actually INCREASED the number of back injuries since those wearing them believed it provided them with some sort of magically lifting powers. By wearing a back brace they actually tried to lift heavier items they would not have tried to lift if they did not wear a back brace. And thus, the number of low back injuries actually increase because of their use.

Therefore I wondered if there were studies about condoms as to the same issue. Does wearing a condom provide a sense of superior safety which may result in actual riskier behavior. So I did research, as attorneys often do.

What I found is much more concerning and confusing. Condoms contain a substance that in known to cause cancer. And not only does it contain a substance known to cause cancer, that substance, known as Nitrosamines, is actually a REGULATED chemical under California Occupational Safety & Health Regulations ( Please see http://www.dir.ca.gov/title8/339.html ). According to the United States Department of Labor, exposure (to Nitrosamines) by all routes should be carefully controlled to levels as low as possible (Please see http://www.osha.gov/dts/chemicalsampling/data/CH_258000.html ).

And here is what US OSHA states Nitrosamines can do to the human body;

Potential Symptoms: Irritation of eyes, skin, respiratory tract; nausea, vomiting, diarrhea, abdominal cramps; headache; sore throat, cough; weakness; fever; enlarged liver, jaundice; decreased liver, kidney, and pulmonary function; low platelet count; [potential occupational carcinogen]

Health Effects: Cancer (HE1); Liver cirrhosis (HE3); Suspect teratogen (HE5)

Affected Organs: Liver, kidneys, lungs

A German study found that; ( Please see http://www.dw.de/dw/article/0,,1220847,00.html )

The condoms, which were kept in a solution with artificial sweat, exuded huge amounts of cancer-causing N-Nitrosamine from its rubber coating. Researchers measured amounts of N-Nitrosamine, that were way above the prescribed limits for other rubber products such as baby pacifiers.

“N-Nitrosamine is one of the most carcinogenic substances,” the study’s authors said. “There is a pressing need for manufacturers to tackle this problem.”

Then I thought to myself this cannot be true. Where are all the penis & cervical cancer cases ? Surely the world would have heard reports of an increase in these types of cancers if in fact the chemicals in condoms caused cancer. So I did more research, as attorneys often do. And then I found the actual study performed by the German researchers. It is published on the National Institute of Health Website (Please see http://www.ncbi.nlm.nih.gov/pubmed/11759152 ).

Here is a excerpt from the study; (I highlighted the important parts relevant to this discussion)

Previously, endogenous nitrosamine formation in the vagina has been suggested as a cause of cervical cancer. It was speculated that exogenous N-nitrosamines and N-nitrosatable compounds from condoms may also lead to genital cancer. Therefore, we reviewed the literature and calculated the risk for the induction of tumors by nitrosamines from condoms. In vitro Biaudet et al. (1997) found up to 88 ng nitrosatable compounds migrating from condoms to cervical mucous within 24 hrs. During sexual intercourse about 0.6 ng may migrate in the female genital mucous membranes because of the short contact to the condom, e.g. 10 min. Comparable amounts of nitrosamines may also migrate in the penile skin. Estimating 1500 contacts to condoms during lifetime (50 condoms/year for 30 years) this may result in the adsorption of up to 0.9 microgram nitrosamines in total.

This study was based on the use of condoms for personal sexual activity NOT commercial sexual activity. The researchers used 10 minutes for an exposure period having sex once a week for 30 years. Based on that they concluded that condoms did not present a risk of increased cancer rates. I tried to find an example of another study where condom use was much greater but I could not find one (Perhaps if someone can find a research paper as to the use of condoms for sex-workers and increased cancer rates from exposure to Nitrosamines that would be most beneficial).

Taking their research a step farther and applying it to the industry sex practices, it is possible for a male performer will have to use a condom for up to 6 hours a day (2 scenes)  for up to 5 days a week. This is 17,900% increase in exposure over how much time the typical man would wear a condom in his lifetime according to the German’s study. And that is only in one week of exposure to the male performer. Compound that number by years of performing and now there is a substantial increased risk of developing cancer, even using this study’s parameters.

So here we have Cal-OSHA demanding that the industry use condoms to comply with blood-borne pathogen laws when their own regulations indicate that Nitrosamines cause cancer and there has been NO studies performed that show that long term industrial exposure to the Nitrosamines in condoms is safe.

Why hasn’t this issue been raised in the debate as to whether condom use should be mandatory? Why are condoms being forced on the industry before any controlled studies have been completed as to high exposure and long term effects of Nitrosamines are more closely examined ?

Oh yes, because condoms are being pushed by the AIDs Healthcare Foundation and the health and safety of performers would only get in the way of their safer sex message for the general public, who will never develop cancer from the use of a condom.

 

 

0

Performers, Producers & Escorts: Naked in Public? Register as a Sex Offender!

As part of the ABL’s campaign to educate California voters on Proposition 35 here is a video excerpt from Mr. Francisco Lobaco from the American Civil Liberties Union (ACLU) addressing the California Legislature about his concerns how Prop 35 will infringe upon anonymous free speech on the Internet.

Under Proposition 35, anyone convicted of even a minor crime such as indecent exposure, even decades ago, will now be required to register as a sex offender. And as a register sex offender under Proposition 35, that person will now have to inform law enforcement of any name or alias they use in any online discussion group or social media platform within 24 hours of creating such account.

Failure to do so will be either a felony or misdemeanor – depending on what their underlying crime was which required them to register as a sex offender.

Which means if you are a performer or producer, you have to be very aware of the indecent exposure statutes especially if you produce anything outside in public. Sex/nudity in public can be indecent exposure. If caught you could end up as a registered sex offender and be required to tell the police of every screen name and alias you use on Twitter, Facebook and LinkedIn, FOREVER. If Proposition 35 passes you are going to be treated like a child molester. And according to Mr. Lobaco this might even apply to those that were convicted of or even plead guilty to indecent exposure years ago.

 

0

Returning to Work ? Somethings You Should Know…

September 3, 2012, Labor Day, ironically, is the day that the FSC/APHSS has determined to be the best day to return adult performers to a regular production schedule, a mere 10 days after receiving a prophylactic antibiotic shot to hopefully cure the syphilis outbreak in the industry. Now that the moratorium on production has been lifted, be safe and here’s some facts that you should know before you head off to set;

  • There are 9 performers in adult confirmed positive for syphilis as of today;
  • Syphilis may take up to 90 days to detect through testing with the average range being 21 days;
  • Once you test positive for syphilis you may always test positive for syphilis;
  • If you are receiving your test results through APHSS you may not know that you are working with another performer that previously tested positive for syphilis – the APHSS database only tells you whether someone is “cleared” to work;
  • There is a disagreement between APHSS and TTS as to the proper test to use to detect syphilis;
  • APHSS states that their required and mandatory re-test can detect syphilis at 14 days while TTS states two tests are necessary to detect it this quickly.
  • Only 300 performers opted to take the antibiotic shot;
  • Despite the moratorium on production, there were some production companies and agents that continued to book scenes;
  • Some performers continued to escort during the moratorium;
  • Condoms may not protect you from catching or spreading syphilis;
  • Treatment for syphilis may make birth control pills ineffective;
  • Often those with syphilis do not show any symptoms of the disease;
  • In the primary and secondary stages syphilis is very contagious;
  • If a performer’s off camera sex partner(s) were not treated it is possible to reinfect those that were treated;
  • An antibiotic shot is not a vaccine and a performer can be reinfected quite easily;
  • If you catch syphilis, receive treatment and then get reinfected it will require 1 shot a week for 3 weeks to cure it;
  • Having an open syphilis sore makes it 2 to 5 times more likely that you can transmit/contract HIV during sex.

If there are any facts I have let off this list please feel free to add a comment to this article and I will add them to the list.

0

Emails, Databases and Doctors – Are We Doing it Right ?

This article is a continuation of my examination of the testing facilities utilized by the adult industry to check for the presence of sexually transmitted diseases. There is a little known but albeit interesting law in California that should be of special interests to those in the adult industry for two reasons. First, California Health and Safety Code section 123148 requires that a “health care professional” who orders a laboratory test for sexually transmitted diseases “shall” provide those results to the patient. Further, test results for HIV antibodies cannot be provided to the patient by the healthcare professional by the Internet or other electronic means. The statute reads in relevant part;

123148.  (a) Notwithstanding any other provision of law, a health
care professional at whose request a test is performed shall provide
or arrange for the provision of the results of a clinical laboratory
test to the patient who is the subject of the test if so requested by
the patient, in oral or written form. The results shall be conveyed
in plain language and in oral or written form, except the results may
be conveyed in electronic form if requested by the patient and if
deemed most appropriate by the health care professional who requested
the test...
(f) Notwithstanding subdivisions (a) and (b), none of the
following clinical laboratory test results and any other related
results shall be conveyed to a patient by Internet posting or other
electronic means:
   (1) HIV antibody test.
   (2) Presence of antigens indicating a hepatitis infection.
   (3) Abusing the use of drugs.
   (4) Test results related to routinely processed tissues, including
skin biopsies, Pap smear tests, products of conception, and bone
marrow aspirations for morphological evaluation, if they reveal a
malignancy.

 

These two paragraphs have serious implications as to how the industry currently handles testing as well as how that information is shared with a performer. The first paragraph requires that only a physician or other “health care professional” order the testing for the sexually transmitted disease panel since only the physician or other “health care professional” can share the tests results with the patient. Also, if those test results include an HIV antibody test those results cannot be shared via the Internet on a database, by email or even through a phone call. You read that correctly. Test results cannot even be shared with a patient via a phone call. At this point you may be saying that I must be crazy – all doctors share those results by phone. Except that there is a current bill in the California Legislature to correct that problem with the original law. It is referred to as Assembly Bill 2253 and so far it appears to have bipartisan support in the Legislature but as yet to become law. ( See http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_2253&sess=1112&house=A )

Here is a summary of the bill from MapLight California (See http://maplight.org/california/bill/2011-ab-2253/1069303/history )

Existing law authorizes the results of a clinical laboratory test performed at the request of a health care professional to be conveyed to the patient in electronic form if requested by the patient and if deemed most appropriate by the health care professional, except that existing law prohibits the conveyance by Internet posting or other electronic means of test results relating to HIV antibodies, the presence of hepatitis antigens, and the abuse of drugs, and specified test results that reveal a malignancy.

This bill would revise these provisions to refer to the disclosure of test results, would provide that the telephone is not a form of electronic communication, and would authorize the disclosure by Internet posting or other electronic means of clinical laboratory test results related to HIV antibodies, the presence of hepatitis antigens, and the abuse of drugs, and specified test results that reveal a malignancy if requested by the patient, the means of conveyance is deemed appropriate by the health care professional, and a health care professional has already discussed the results with the patient.

Obviously, if a bill is needed to make it legal for a doctor to tell you whether you have or don’t have HIV on the phone, it is still very much illegal to provide that information to you via email, a database or anything sent to your phone. Currently, it appears that only a “health care professional” can tell you in person what the results of your HIV test is. Some veteran performers may remember when testing started in the industry they had to wait for the results in the testing center in Venice, California. This was even prior to the establishment of the Adult Industry Medical clinic.

If you are now being “sent” your test results by the doctor or the lab that is not allowed under California Health and Safety Code section 123148 (See http://www.mbc.ca.gov/consumer/complaint_info_questions_practice.html#18 ). Further, even with the patient’s agreement the prohibition against sharing test results electronically is NOT allowed. A performer cannot even waive this provision of California law.

So who is a “health care professional” and does a performer actually need to be examined prior to having a test ordered or can a performer simply walk into a clinic and request a test. This is where the laws surrounding HIV testing are not quite clear. And the laws are different in regards to public free testing sponsored by a county or state health department as compared to private medical testing. It is not clear whether a full examination is required. However, it does appear that a performer themselves cannot order a test from a laboratory. That order must be placed by a health care professional.

Based on everything I have read it appears that only a “licensed health care professional” licensed under California’s Professions and Business codes can order an STD test from the lab. Obviously it would be lawful for a physician licensed in the state of California to order such a test. However, what about Nurse Practitioners, Physician’s Assistants and other medical personnel you might encounter in a testing facility ? Nurse Practitioners and Physician’s Assistants are licensed by the state of California so it seems that they can order STD testing. Can front desk clerks and other non-licensed staff order STD tests – the answer is probably not.

At this point in time it appears that the way tests results are ordered and provided to performers within the adult industry may not be in line with current California law. If Assembly Bill 2253 finally passes and is signed into law by the Governor of California we will be one step closer to being compliant with that change in the current law.

If you would like to learn more about laws pertaining to HIV and the testing for such in California please download this guide from the state of California -> http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=25&cad=rja&ved=0CGQQFjAEOBQ&url=http%3A%2F%2Fwww.cdph.ca.gov%2Fprograms%2Faids%2FDocuments%2FRPT2007-06-14-2849-2006AIDSLAWS.pdf&ei=LN48UMDIK8iz8AHtvYGoCw&usg=AFQjCNH63w71vDufrICv3mYyvdYKVm34Kw&sig2=ZGP8YZWMEBLk-WT1cM9ebw

 

 

 

0

Is There a Hole in APHSS ?

The syphilis outbreak in the adult industry has brought to the forefront a highly contested debate as to testing for sexually transmitted diseases. Currently there is a debate as to whether there should be one testing facility or multiple facilities. There is also a debate as to what the proper protocols should be for informing performers and their sex partners of a possible outbreak. There is yet another debate as to whether what exactly should a performer know about his/her costar on set in regards to their medical history.

Background…

The main players in this debate are the testing facilities under the umbrella known as the Adult Production Health & Safety Service (APHSS https://aphss.org/ ). APHSS is the brainchild of the Free Speech Coalition (FSC http://www.freespeechcoalition.com/ ) and several major content production studios that openly support the FSC, most notably Manwin, Evil Angel, Kink.com, Girlfriend Films, Gamma Entertainment and Vivid Entertainment. One of those APHSS testing facilities is Cutting Edge Testing, which is owned and operated by Dr. Miao, and is one of the main testing facilities in Los Angeles for the industry. (CET http://cuttingedgetesting.com/ ).

On the other side of the equation is Talent Testing Services (TTS http://www.talenttestingservice.com/ ), a testing laboratory not a medical clinic, which appears to be supported by LATATA ( http://latata.org/ ). The Licensed Adult Talent Agency Trade Association is comprised of several of the licensed and bonded adult talent agents within the United States. Further, TTS is not part of the APHSS system and it appears does not wish to be. TTS is not a medical facility it is a laboratory that performs testing for sexually transmitted diseases.

APHSS’s inception is rather recent, only occurring after Adult Industry Medical (AIM) closed and filed for bankruptcy within the last year. TTS has been in operation for several years.

As for adult performers, they seem to be split as to which testing facility they prefer. Some prefer CET and the APHSS system while others prefer TTS.

Medical History within the APHSS Database…

Without getting into extreme detail as to either service or all that either service offers, since that would require pages of analysis, I would like to confine my discussion to one potential problem with the APHSS database I have been made aware of by seasoned veteran performers.

Since I prefaced this article with the words “hotly debated” let me state this for my readers. I do not have a financial interest in either testing facility. I do not have a preference as to either testing facility. I am not a performer nor a producer and therefore do not have a “dog in this hunt” so to speak. I am neutral as to both facilities so please do not attack me believing this article is merely an attack on APHSS. It is not. It is merely meant to inform and educate based on a potential issue I see with the way medical history is handled in the APHSS system. My goal is that this issue can be resolved and the database improved for the health, safety and knowledge of the talent.

After a discussion on Twitter with Fabian Thylmann it became apparent to this writer that there is a potential hole in the APHSS database as to the past medical history of performers. I have come to this understanding after the conversation with Fabian Thylmann as well as personally attending the APHSS presentation in July conducted by the FSC and Dr. Maio. I will limit my discussion to just one issue. That issue is how past medical history is handled by APHSS.

From my understanding the performers in the APHSS database will be either “cleared” or “not cleared” to work under the APHSS database and call in system. Which means that only the most recent test results will be available to be reported and only in the way proscribed. Which, for legal purposes, is a good idea with the issue of medical privacy being important to so many. As a lawyer, I like the APHSS database. It leaves little room for violation of medical privacy.

However, from my discussions with some veteran performers it appears that there are a contingent of them that would like to know more about their on-screen partner’s medical history, including whether they have tested for syphilis in the past. While normally I would disagree with that position as for chlamydia and gonorrhea I do see that information as being important for syphilis. Syphilis is an infection that can be easily cured but may always result in some level of a positive finding on a sexual transmitted disease test result, depending on the test used. (Please see http://www2a.cdc.gov/stdtraining/self-study/syphilis/syphilis10.asp ). Therefore, I can certainly see a performer’s right to make an informed decision. While medically it may be impossible to transmit the disease once a performer as undergone treatment some performers feel as though that they would like to know that information prior to performing in a scene with previously positive performer. A balance between privacy and informed decisions must be made.

From what I was told by Fabian Thylmann of Manwin, a performer who has tested positive for syphilis will be cleared for work within the APHSS database once they have been examined and cleared by an APHSS physician. Therefore, while we do not know at this time who besides Mr. Marcus may have it,  based on Fabian Thylmann’s statement it is possible that at some future point a performer that had syphilis and received treatment will be actively performing again. With this potential hole in the APHSS system anyone working with that performer would not even know about the past positive history for syphilis.

While this might not present much stress for some performers it may for others. I discussed this issue with a male performer that indicated that he did not believe that working with a performer who had previously tested positive for syphilis but is now cured posed much of a risk. However, he did indicate that information would be desirable in order to make an informed decision. Performers should be able to assess risk and balance such concerns themselves.

I had suggested to Fabian Thylmann of Manwin that the APHSS database be changed so that it would instead read “cleared for work” however with a notation. That notation in the database could be an indication that the other performer may have tested positive for syphilis within the last 30, 60, 90 or 180 days depending on long ago the past the positive test occurred. That may allow a performer to make a more informed decision as to who their screen partners will be.

This hole in the database may also become more important in the future if testing is going to expand past the basic HIV, chlamydia, gonorrhea and now syphilis panel. If the industry adds herpes, hepatitis and human papillomavirus to the regular testing panel how is the APHSS database set up to handle those types of results. Are all performers that test positive for herpes going to be “cleared to work” without a notation that they carry the virus ? As with syphilis is an APHSS doctor going to examine them for the presence of an outbreak before clearing the performer to work ? How often will this exam be necessary ?

Will there be a notation in the APHSS database for those performers that have had a hepatitis B vaccination ? Will a performer know if they are working with someone else who has been vaccinated ?

Since this database is being touted as the database for the entire industry, lets not forget the gay side of production as well. There are gay production companies that allow HIV positive performers to work with other HIV positive performers as well as HIV negative performers ( See http://www.insidesocal.com/outinthe562/2010/11/hiv-positive-gay-porn-actor-signs-exclusive-contract.html ). Some of those studios even match performers with different strains of HIV together. How would this particular situation be handled by the APHSS database and call in system ? Would an HIV positive performer working for a gay production studio “not be cleared for work” or would they. Would a notation be required on that performer’s database file ? Or is APHSS simply not going to allow gay performers and production companies into their database ? That cannot be possible since APHSS has under it’s umbrella of testing facilities a clinic located in San Francisco. There are also straight porn production companies such as Naughty America that are now also producing gay content ( See http://queermenow.net/blog/naughty-america-presents-3-new-gay-porn-sites/ )

Needless to say, the syphilis outbreak has caused numerous questions to be asked in regards to the current state of testing and performer health and safety as well as the mandatory use of condoms now required by state law and Los Angeles city ordinance. Without doubt this issue will continue to be debated, lines will be drawn and sides will be taken. Let us not forget those in the middle of the fire, the performers who risk their health every time they step on set to perform.

Knowledge is power. If you believe I am mistaken in the way medical history will be handled by the APHSS database I invite you to post a comment. Any inaccuracies will be corrected.

0

Syphilis and You – Part I

I usually try to remove my personal thoughts and prejudices from this blog and desire it to be more legal and factual in nature. However, in light of what is happening not only in the United States but also Europe in regards to syphilis I do not believe that I can. Too many of my friends, not just clients, are caught up in what could end up ruining their lives, businesses and careers.

I had a conversation two nights ago with a client and friend that perhaps I was too difficult on since I held a bright-line approach with him as to when he should return to performing as well as producing. It is always much easier to play quarterback from the sidelines then it is from the actual game. And I am not IN this actual game. I do not sacrifice my body on camera nor do I have to worry about my hired talent on set contracting syphilis or any STD for that matter. I am not a producer nor talent.

He was gracious in explaining the everyday situations he finds himself in a much diminished industry trying to do what he feels is the “right thing” while being able to pay his bills. I certainly cannot fault him for such. It is a difficult decision that producers and talent have to make as to when to resume shooting.

It appeared, at least to most, that the most turbulent part of the storm had blown over when the FSC ( http://www.freespeechcoalition.com ) had made the announcement that Manwin and several other producers would provide a prophylactic antibiotic shot to talent for free so they could return to work 10 days after receiving the injection. Hundreds of performers lined up to get the miracle drug called penicillin. Then two days later Rocco Siffredi dropped a bombshell interview on XBiz Magazine, wherein, he claimed that 89-100 performers through-out Europe now have syphilis and the number may be rising. ( http://www.xbiz.com/news/153188 ) He also went on to state that Europe is now under a 60 day moratorium and production has ceased. Cases have been reported in Budapest, Prague and St. Petersburg. St. Petersburg may have had the earliest reported cases starting in as early as May 2012. (Note: This information was provided by Fabian Thylmann of Manwin) His comments left most of the US industry wondering how and why this happened.

It appears for all intents and purposes that the European performers were also receiving antibiotics as well. Therefore, how could 16 cases explode into 100 cases in a short 2-3 weeks. I do not know if anyone has the answer to that particular question nor do we in the US know that there is a confirmed count of 100 cases in Europe. I have no reason to doubt Siffredi, but his comments cannot be viewed in a vacuum. He might be incorrect. However, he seemed to blame performers that also escort as a reason for the increase in cases, at least outside the industry. He also discussed that fact that some talent in Europe also altered their tests to allow them to continue to work as Mr. Marcus did here in Los Angeles. However, he did not seem to have an answer as to how the number of cases had risen in Europe so dramatically in a few short weeks.

In the United States, an accurate count of the number of positive cases remains a mystery. It could be 2, 5 or even as high as 9 as reported by the Los Angeles County Health Department (LA County Health receives all reports of STDs within the county as required by law). Which of those cases are from within the industry and how many are outside of it. The simple answer is that no one knows for certain at this point.

Unfortunately, many performers within the Los Angeles industry continue to work despite the moratorium. I even heard that one male talent has said that the syphilis outbreak has been a “goldmine” for him since he was one of the few male performers still willing to work. I have also heard reports of agents continuing to book talent for scenes and even charging them “kill fees” for refusing to perform. Which obviously means there are at least a handful of companies that are still producing. As my friend and client indicated, people have to eat and pay bills. Many performers and producers do not have a cash reserve that will allow them to survive even a 10 day stoppage no less the 60 days that is now affecting our European counterparts. Further, producers for some large internet websites and tubesites do not have enough content in reserve to allow them to stop producing. Websites must be continually updated for the members so they continue to rebill.

This has left me wondering whether the US, and more specifically the Los Angeles, market is about to experience a dramatic rise in the number of cases or has this outbreak been contained by the prophylactic antibiotic shot provided to some performers for free. Some performers have opted not to take the shot and would rather wait 90 days for three clean syphilis tests to continue working. Either way, we are, without question, in a wait and see period. The latency for a positive finding on a syphilis test can indeed be as long as 90 days though it usually shows up on a test within 20-30 days. I am unaware of any tests that can show whether a performer is positive or negative for syphilis in as little as 10 days. (Note: Fabian Thylmann of Manwin provided that there is no test that can accurately detect syphilis at the 10 day mark however it is his opinion that if treated and caught early a performer should be allowed to return to work.)

So where does that leave the US talent pool as well as the producers ? At this point, in my opinion, lost and confused. I have received numerous calls in regards to when production should resume. No one seems to have a clear answer to this question since the answer would depend on your ability to handle risk. Obviously, the sooner you return to production the higher risk you might have of contracting and spreading syphilis. The longer you wait the more the risk diminishes – or does it ? Perhaps not, if some talent and producers continued to work during the moratorium. What it really comes down to is how many first generation cases did we start with and how many second generation cases were there, as well as how many of those cases were cured with the antibiotic shot. I do not think we will ever know since prior to giving the antibiotic shot, the FSC and APHSS did not specifically test the performer base for syphilis, they merely injected them. However numerous performers did in fact test prior to receiving the injection. Therefore, the industry may never know how exactly far this disease had spread. We, like the Europeans may have had 75+ cases. We may have none now thanks to the shot. We may still have several cases floating around the industry. We do not know. However, we will soon find out though.

The real question is what else can a performer and or producer do in the interim to pay the bills and survive a 10 day or longer shut down of production. That will be discussed in my next installment – Part II.

 

0

Syphilis and Forced Employer Vaccinations…

Today APHSS & the FSC begin a regiment of providing free antibiotic shots to porn performers in order to prevent the spread of syphilis. I have received numerous emails, texts, phone calls and DMs on Twitter from various members of the adult industry community as to the legality of an employer demanding that a worker receive a prophylactic antibiotic shot an as a condition of employment.

Basically, it is my understanding that certain production companies will not hire a particular performer unless they can show proof of receiving the antibiotic shot for syphilis through the APHSS system. I am unaware of any exception to this condition by APHSS or FSC that would allow a performer to seek out the consultation of their own physician as to the risks and benefits of receiving such treatment. Even though the prophylactic antibiotic shots begin today very little information has been disseminated to the performers other then if they receive the shot they can return to work in as little as 10 days. I have not seen much in the way of information being provided to the performers in regards to the risks of the antibiotic shot or the side effects of such. Nor have I seen much in the way of alternatives being proposed.

I cannot and will not provide medical advice. What I can say is that, legally, every person has the right to chose their own medical treatment from their own physician and if necessary refuse such treatment.

In California it is a well established rule of law that a physician who performs any medical procedure without the patient’s consent commits a battery irrespective of the skill or care used. The consent of a patient must be “informed.” Under the doctrine of informed consent the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis. Accordingly, the right to refuse medical treatment is equally “basic and fundamental” and integral to the concept of informed consent.

I urge all performers to seek out a consultation from their own physician as to the need for antibiotics for treatment for a disease they may not have and may not have even been exposed to.

As to whether an employer may force inoculations/vaccinations as a condition of employment it may be permissible under California law, however, any performer having an adverse reaction to the inoculation/vaccination would have a civil lawsuit and a workers’ compensation claim against the entities and production companies requiring such inoculation/vaccination as a condition of employment. In Maher v. Workers’ Comp. Appeals Bd., 33 Cal.3d 729 (1983), a nurse’s assistant was required by her employer to undergo a physical examination that included a test for tuberculosis. When she tested positive for the disease, she was required to undergo treatment for tuberculosis as a condition of continued employment. She developed a significant adverse reaction to the treatment. The California Supreme Court held that employer-required medical treatment for a nonoccupational disease arises out of the employment and is compensable. (Id. at p. 738; see also Roberts v. U.S.O. Camp Shows, Inc. (1949) 91 Cal.App.2d 884, 885 [205 P.2d 1116] (Incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer.)

By demanding and directing the prophylactic antibiotic shot, those production companies requiring such open themselves up to a myriad of liability as to any death, incapacity or future treatment resulting from such decision. It is cautioned that the performers seek medical advice as to the treatment and production companies seek legal advice to the ramifications of demanding forced prophylactic antibiotic shot as a condition of employment.

0

Who Should Pay for Performer Testing ?

On July 24, 2012, Manwin the owner of membership websites known as Brazzers and Mofos and tubesites such as YouPorn, PornHub, and Tube8 made an announcement that they would donate $50,000.00 per month to create a “Performer Subsidy Fund” to reimburse performers for the cost of testing in the adult industry (See story here).

This fund would be administered by the Free Speech Coalition through their APHSS program. Basically, Manwin stated that they would reimburse all performers the costs of their tests within a given month up to $50,000.00, whether those tests were for Manwin productions or not. Manwin also called for other production companies to join with them in their generosity and also donate to the fund. They further donated a total of $35,000.00 to FSC/APHSS to administer the fund. However, they did place a time limit on the program indicating that the program would only run through the end of 2012. At which point it would be re-evaluated to determine if it would be continued into 2013.

Many people within the industry pointed out that this was a very generous, albeit suspicious offer from Manwin. There is a general opinion within the industry that Manwin, through their tubesites, was a direct contributor to the economic downfall of porn production. Why now would they voluntarily come forward and support performers to reimburse testing costs ? Some people even opined that they believed this was Manwin’s attempt to take over medical testing procedures in the industry.

However I think the answer can be found in California Labor Code section 222.5 which reads in relevant part;

“No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.”

In short, employees in California cannot be made to pay for pre-employment medical testing, which is exactly what the STD testing is within the adult content production business – a pre-employment test. Without a clean test no production company will or should hire a performer to perform in an adult production.

I realize that many performers in adult do not and refuse to consider themselves employees. Rather they wish, for whatever reason, to be called independent contractors. I can assure anyone reading this article that performers, for purposes of worker safety laws, are indeed employees and not independent contractors. Perhaps for tax purposes they may be independent contractors. It is possible to be an employee for worker safety laws but yet be an independent contractor for tax purposes.

Further, on January 1, 2012 additional laws went into effect in California making the “willfull misclassification” of employees as independent contractors even more dangerous for employers. Labor Code Section 226.8 imposes significant penalties ranging from a minimum of $5,000 to $25,000 for “each violation.” The civil penalties for one misclassified individual could be tens of thousands of dollars depending on the interpretation of “each violation” and the penalty imposed. Obviously, if Manwin does not take remedial steps to comply with California law in regards to the classification of employees they may face significant penalties as well as potential lawsuits under California’s Private Attorney General Act, which allows individuals to file lawsuits to enforce California law.

It is this author’s opinion that Manwin is starting to realize that the performers are indeed employees and are taking steps to comply with California law. Obviously, they are trying to set a precedent with the reimbursement of testing costs, however they still fall short of actual compliance with Labor Code section 222.5. Since the “Performer Subsidy Fund” requires a performer to sign up for the program instead of Manwin paying for the pre-employment testing outright.

None-the-less, Manwin is taking a step in the right direction when it comes to the treatment of performers, however, it is only a half step. At some point all production companies will have to address not only peformers’ testing costs but also the issue of workers’ compensation for on-set injuries.

If you would like to read more on the issue of workers’ compensation and porn production here is a two part interview I did for XBiz Magazine in 2007 … Part I and Part II

In future posts I will be covering the issue of workers’ compensation insurance and its application to porn production sets further.

0

Create a website or blog at WordPress.com

Up ↑