An analysis of potential liability within the adult film industry stemming from industry practices related to sexually transmitted infections.

• Author: Chase, Brian

INTRODUCTION

In just a few decades the adult film industry has grown from underground and largely illegal to virtual ubiquity. And, as might be expected in an industry whose principals have endured ongoing threats of criminal prosecution, many producers of adult films take a somewhat cavalier approach to the law. (1) Widespread employment practices within the industry violate a number of California laws and regulations, exposing performers to sexually transmitted infections (STIs) and the risk of privacy breaches, while exposing the industry itself to significant potential liability. (2) Despite this, lawsuits brought by performers in connection with industry health practices are extremely rare. A combination of factors, including workers' strong desire for anonymity, fear of being blacklisted, lack of access to counsel and unawareness of legal fights appear to have largely shielded the industry from lawsuits to date. Whether or not this status quo will endure depends upon whether performers choose to exercise their substantial legal leverage over the industry.

1. FROM CRIMINAL ENTERPRISE TO BIG BUSINESS

   The adult film industry has long been the subject of negative attention from authorities. Despite the popularity of adult films, criminal obscenity laws remain on the books and continue to haunt the industry. (3) Obscenity prosecutions have become less common in recent years. (4) But prosecutions do occur. (5) Furthermore, the practice of paying performers to engage in sexual activities on camera could trigger prosecutions under various state anti-prostitution laws. Only two state supreme courts, California and New Hampshire, have held that paying performers to have sex on film is not a crime. (6)

   Despite the legal barriers to the production of adult films, however, the industry has grown. Although the exact size of the adult film industry is impossible to determine, the direct production of adult films appears to generate several billion dollars per year. (7) One of the largest adult video producers, Vivid Video, claims to have generated a billion dollars in revenue in 2006 alone. (8) Although the Internet has reduced the demand for adult-content DVDs, new entrepreneurs, such as Montreal-based online provider "Manwin," have emerged and are profiting in the current market. (9) Whatever the exact size of the industry, it is clear that there are multiple adult film producers who are anything but judgment-proof.

   Despite the industry's wealth, lawsuits brought by adult film performers against production companies or other industry participants are exceedingly rare. There are virtually no published decisions involving such suits. Of two reported cases involving lawsuits brought by adult film performers against producers, only one stems from workplace practices regarding STIs. (10) In that lawsuit, a performer who contracted HIV while performing in an adult film was found to be entitled to workers' compensation. (11) The dearth of other litigation stemming from the STIs within the adult film industry is surprising as such infections are widespread among adult film performers. (12) Surprisingly considering the industry's size, it has, to date, avoided significant liability to performers stemming from any questionable workplace practices within the industry. But the industry's good fortune in avoiding liability does not stem from scrupulous adherence to the letter of the law. Film producers who are willing to assume the risk of an obscenity conviction may simply be unfazed by the prospect of civil litigation.

2. STI PROTOCOLS WITHIN THE INDUSTRY

   Performers within the heterosexual adult film industry receive monthly tests for Chlamydia, gonorrhea and HIV. (13) Such testing is not mandated by any law or regulation. Even assuming widespread voluntary compliance with this standard, monthly testing for Chlamydia, gonorrhea and HIV does nothing to prevent or reduce incidents of other STIs, such as genital herpes, human papillomavirus, hepatitis, and syphilis. (14)

   Until recently, the Adult Industry Medical Healthcare Foundation (AIM) served as a nonprofit sexually transmitted disease testing facility and clearinghouse for performers' test results. AIM made available performers' Chlamydia, gonorrhea and HIV test results, along with performers' legal names, stage names, and contact information, through a database that had been accessible at the URL "aimcheck.net." (15) In December 2010, the Los Angeles County Department of Public Health ordered AIM to cease operations after discovering that the facility was operating without a community clinic license, in violation of California Health and Safety Code section 1204 et seq. (16) The facility attempted to re-open as a for-profit entity, (17) but closed entirely in the spring of 2011 (18) and both the for-profit and nonprofit entities filed for bankruptcy on May 12, 2011. (19)

   Condom use is vanishingly rare within heterosexual adult films. Of all major producers of heterosexual adult films, only Wicked Pictures requires universal condom use during intercourse. (20) Furthermore, performers who insist on using condoms to protect themselves and other performers from STIs are subject to a blacklist and will most likely find it difficult or impossible to find work. (21) Jenna Jameson, possibly the most famous adult film actress in the world, has acknowledged that performers do not insist on condom use because they are afraid that doing so will result in a loss of work. In a recent interview, she stated,

   "The fact is that safe sex is not continuously practiced in the adult film world, it's something that's left up to the performers and usually the women say yes or no and I think a lot of the women feel pressure to not use condoms because they're in fear of not getting hired by that company again. It's very sad and disgusting." (22)

   One adult film performer states, "You either accept the fact that you're going to do a scene without a condom, or accept the fact that you're not going to do a scene." (23)

   A wide range of individuals and organizations concerned with public health, including the American Public Health Association, the American Medical Association, the American Social Health Association, the California Academy of Preventative Medicine, the California Medical Association, the National Coalition of STD Directors, the California Conference of Local AIDS Directors, and the California STD Controllers Association all agree that the industry's testing protocols are inadequate to protect performer health and that condoms should be employed in the production of adult films to prevent STIs. (24)

   Because AIM has ceased operations, it is unclear what steps, if any, producers are currently taking to protect performer health. The Free Speech Coalition, an industry trade group, has launched an organization called Adult Production Health and Safety Services (APHSS) to operate a database similar to AIM's. (25) It remains to be seen whether a critical mass of performers and producers will subscribe to the program. (26)

   III CURRENT WORKPLACE SAFETY REGULATIONS

   Current regulations, at both the state and federal level, require condom use and employer-funded medical care for workers expected to engage in sexual intercourse on the job. But these legal requirements are largely ignored by the adult film industry. These regulations are commonly and collectively referred to as the "bloodborne pathogen standard" and require the use of barrier protection to shield any employees who can be "reasonably anticipated" to experience workplace exposure to blood and "other potentially infectious materials," including semen, vaginal secretions, and any other bodily fluid that is visibly contaminated with blood such as saliva. (27) The "bloodborne pathogen standard" applies to all industries except construction, which is specifically exempted. (28) The regulation requires that the employer make available, at no cost to the employee, hepatitis B vaccinations to all employees who have occupational exposure, and post-exposure medical evaluation and follow-up to all employees who have had an exposure incident. (29) Post-exposure evaluation and follow-up includes provisions for testing the blood of the exposed employee and the source individual (the individual from whom the blood or other potentially infectious material came) for hepatitis B, hepatitis C, and HIV; and post-exposure prophylactic medical treatment. (30) An "exposure incident" is defined as a specific eye, mouth, other mucous membrane, non-intact skin, or parenteral contact with blood or other potentially infectious materials that results from the performance of an employee's duties. (31) The California standard closely tracks the analogous federal standard. (32) Cal/OSHA, the agency responsible for enforcing workplace safety regulations in California, has opined that the existing standard requires condoms to be used in the production of adult films. (33) Cal/OSHA has fined multiple adult film production companies, including Larry Flynt Productions (which owns Hustler) for failing to enact exposure control plans requiring, among other things, condom use. The vast majority of producers within the adult film industry, however, continue to operate in direct violation of these workplace safety regulations.

4. POTENTIAL CAUSES OF ACTION STEMMING FROM ADULT FILM INDUSTRY PRACTICES CONCERNING SEXUALLY TRANSMITTED INFECTIONS

   1. The California Private Attorney General Statute

      A little-used but remarkably powerful California employment law may be the most effective means for performers to exercise control over health and safety conditions within the adult film industry. The California Private Attorney General Act of 2004 (PAGA) allows a single employee to sue an employer for multiple violations of workplace regulations and collect penalties that would ordinarily be collected by state agencies. (34) PAGA allows plaintiffs to assert claims on their own...