Cal/OSHA Condom Proposal To Be Ready Before June 7 Meeting

VAN NUYS, Calif.—In a report given to the California Occupational Safety and Health Standards Board today, Chief Safety Engineer Deborah Gold stated that her team was in the process of drafting proposed changes to the current California Health Code section dealing with transmission of blood-borne pathogens, and that she expected to have a draft proposal ready for discussion at the next general meeting of her committee on June 7.

"During the advisory meeting on blood-borne pathogens and other infectious diseases, hazards in this industry were discussed," Gold told the standards board. "These other infections not considered to be blood borne include chlamydia and gonorrhea and human papilloma virus, which is associated with cancer. While the barrier methods required by Section 5193 reduce the risk of transmission depending on the specific disease, they may not completely control the risk. Therefore, additional routine and post-exposure medical services may need to be adopted to reduce these risks. Over the next two months, the division will be working on a draft of a proposal that would specifically address the hazards in this industry and plans to have that draft ready for discussion at the June 7 advisory meeting that's planned for Los Angeles, and then, depending on that discussion, the division would then start moving forward on rulemaking or not."

After Gold finished her presentation, board member Jack Kastorff brought up a subject of concern to many adult industry performers and companies.

"As I understand our function, the Cal/OSHA regs are to protect employees, and part of the question here is, who's an employee, and if they are indeed employees, who is the employer? Have we verified that?" he asked.

"We make that determination in every inspection that we conduct, not only in this industry but in every industry," Gold replied. "But there are court decisions that go to that, that have found that [performers] in this industry are employees of specific producers or production companies or whatever. And we have found in our investigations enough evidence to move forward against individual companies on the basis that these performers are employees. ... We have had the advice that generally speaking, the people who are working in this industry have an employee status, whether or not that is recognized for federal tax purposes. It's complicated legally."

Gold's mention of non-blood-borne infections prompted board member Willie Washington to ask, since the petition (designated Petition #513) filed by AIDS Healthcare Foundation (AHF) was specifically directed to the section of the health code dealing with blood-borne pathogens, how Gold's committee could be discussing regulations regarding those non-blood-borne diseases?

Gold responded that that had been part of the ongoing discussions of the committee, and the possibility of separating out those non-blood-borne diseases from the proposed rule changes was currently under consideration.

As might be expected, the hearing, which was held at the State Office Building at 6150 Van Nuys Blvd., brought out several of the "usual suspects" who've previously attended the committee meetings, including Mark Roy McGrath, now of the Los Angeles County STD Program; Shelley Lubben of the anti-porn Pink Cross Foundation; and attorney Kevin Blank, representing Free Speech Coalition. However, there were also some new faces, including Adam Cohen, a doctoral student affiliated with UCLA's Reproductive Health Interst Group, and Jennie Case, a veteran of 13 adult movies in which she appeared under the name of "Veronica Lane," and now allied with Lubben's group.

During the public meeting portion of today's board meeting, Cohen came out in support of AHF's petition, and noted that editorials in both The New York Times and the Los Angeles Times had supported "mandatory condom use and greater oversight within the adult film industry," and that at least one state health agency had also supported forced condom use.

"Unfortunately, another performer has contracted HIV, likely through a workplace exposure," Cohen told the board, apparently referring to gay performer and reported gay escort Derrick Burts. "During this performer's brief four-months time in the industry, he contracted chlamydia, gonorrhea, herpes and HIV. ... The average lifetime cost of HIV care is more than $600,000. Since most performers lack adequate insurance coverage, the state also picks up the cost of treatment for repeated exposures to sexually transmitted infections."

Lubben spoke next, repeating several claims about her experiences in the industry which have been thoroughly debunked by her own previous statements, as chronicled in the upcoming documentary, The Devil and Shelley Lubben.

During her speech, Lubben claimed that she was "still suffering from the long-term effects of these sexually transmitted diseases and the other traumatization [sic] from the adult film industry. I was involved in many high-risk, unprotected sex acts filmed in private locations with totally unsupervised and unregulated porn sex where anything goes. I was coerced and forced into sex acts that involved things like double penetration, double anal, double vaginal, repeated facial ejaculations. I was required to work without condoms in order to maintain employment. When I complained, I was threatened with no pay, lawsuits, verbal and physical threats."

Although Lubben never complained to authorities about the alleged "forced sex acts" even after completing her short stint in the industry—17 movies between 1993 and 1995—she nonetheless told the standards board, "The scenario for young women is not unlike today, and actually, the work conditions are much worse."

"I know what these performers go through, and that's the reason why you don't see many of them here today: Because they're frightened," Lubben claimed. "Why is it for the past year when we've been having these meetings, only maybe a few female adult performers or even non-performers come? They're afraid for their lives, they're afraid they'll lose their jobs. Right here in Van Nuys, I've personally invited the porn industry to come face this meeting, and where's the female porn actresses to speak on their behalf? They're not here because they know that they're going to be threatened, and they're going to be blacklisted for telling the truth about what's really going on, and a lot of them honestly don't know that it is illegal for this kind of treatment."

Lubben went on to describe many current performers as "young, dumb females who couldn't read a contract," and who "can't even understand words like 'litigation' or 'arbitration.'"

Lubben's claims impelled Kevin Blank to address the board to correct Lubben's statements about performers' interest in the condom issue.

"I guess I can take a lot of the blame for that because my understanding was, this was an update today," Blank explained. "A lot of people wanted to come and argue the case today. However, this isn't a public hearing for the rulemaking; this isn't the rulemaking itself; we haven't seen the proposal from the division yet unless it's come out recently, so we don't even have a proposal yet to even debate the substance of, so I didn't want to waste a lot of the Board's time on this further, but I did want to recognize that we're still engaged as an industry, we're still interested in the rulemaking, we still continue to be a part of the process and as you guys know, I've been down this road probably a hundred times now and so sometimes you just have to let the process take its course, and I hope you guys have an open mind as we move through the process, and when we get a proposal, then we can debate that."

The board also heard from another Lubben acolyte, Jennie Case, an ex-performer with a career even more brief than Lubben's: 13 movies over two years between 1994 and 1996—although she claimed that she been "in the sex industry for most of my adult life," leaving attendees to wonder how she spent the past 15 years after making movies.

"I performed in many adult films," Case claimed. "During that time, I contracted chlamydia, which caused pain in my abdomen, bacterial infections, urinary tract infections, a damaged cervix so bad that Planned Parenthood interns had to come take a look at it in the room, the examination room. Condoms were never used during this time, any time that I did any filming, there were no condoms used whatsoever. I thought I was safe, and of course, you can't complain, it's part of the job. The  job does require you to have other—many bodily fluids inside and outside of you including semen, and I fully support the blood-borne pathogens laws that apply to everyone, that you apply to the adult film employers in the adult film industry as well."

The board meeting lasted just over a hour, but the real battle will remain, for now, in the committee meetings, with the next one scheduled for 10 a.m. on June 7 at the CalTrans building, 100 S. Main St. in downtown Los Angeles.

Be there or be square!