Cal/OSHA Hearing: The 'Stakeholders' Speak

WALNUT CREEK, Calif.—One word that kept coming up during the hour-long hearing on Thursday before California's Occupational Safety and Health Administration (OSHA) Standards Board was "stakeholder." The term is defined by as "a person or group that has an investment, share, or interest in something, as a business or industry," and it well describes the performers, directors and producers of adult content who spoke to the five-member Board to express their strong opposition to AIDS Healthcare Foundation's (AHF) attempts, for more than seven years now, to force the performers to use condoms and other "barrier protections"—one speaker referenced "gloves and dental dams"—while performing on-camera sex acts.

The meeting commenced shortly after 10 a.m., and when the Board Chair Dave Thomas opened the Public Meeting portion of the session, first at the microphone was Adult Performer Advocacy Committee Board (APAC) member Ela Darling.

"We represent about half of the active performer base in the adult industry," Darling began. "I and the Adult Performer Advocacy Committee support the FSC petition, and ask that you please convene an advisory committee based on that petition. We further request that you exclude the AHF, who have tried to hijack and politicize this process in an effort to further their crusade to pass Prop 60 using performers as pawns. They've incentivized a retired performer [Phyllisha Anne] to support their cause, and misrepresent her organization [IEAU] as supporting them; they've created an atmosphere of antagonism for performers who speak out against them. Just this week, they've acquired citations against a performer/producer [Joanna Angel] and shared her information, including where she lives, with reporters. They've shown that they are not interested in working with performers. I and my organization called a press conference several weeks ago and they didn't respond, they didn't make any effort to communicate with us. They've shown that they do not have any interest in working with us, speaking to us or considering our perspectives. They create an atmosphere that is not conducive to positive, constructive discourse and as the true stakeholders in this industry, we ask that you allow us to work with you on this without having people who have antagonized us and wish us harm along the way."

What followed was a procession of adult industry supporters, all speaking in favor of Petition 560, which was created by Free Speech Coalition in an attempt to find a workable arrangement that would allow condom choice during sex scenes while still adhering to Cal/OSHA safety protocols. Also under consideration was Petition 557, created by AIDS Healthcare, and described by Administrative Officer Marley Hart as "substantially identical" to Petition 513, which was filed in 2009 and which led to nearly a dozen public meetings overseen by then-Cal/OSHA Chief Inspector Deborah Gold.

"I have been a condom-only performer for the past almost 12 years," noted the next speaker, Jiz Lee. "The last time I was testifying in Oakland for OSHA, I said that the current regulations make a mockery of safer sex. The reason behind that is because the kind of restrictions on fluid exchange recall to mind the ridiculous 'Bubble Boy' imagery that is almost comically unrealistic when it comes to depicting skin-to-skin intimacy that is so huge in sex. We say 'safer sex' as opposed to 'safe sex' because we understand that all sex acts involve some level of risk. ... I also work behind the scenes in porn, providing performers full use of these safer sex tools. On behalf of San Francisco-based production company Pink and White Productions, director Shine Louis Houston and myself, we support the Free Speech Coalition's petition 560 which we believe is the most comprehensive safety guideline for protection of adult films as well as the most appropriate protection and privacy of performer workers."

Following Lee was attorney Karen Tynan, who sounded an ominous note concerning AHF's practices: "I'd like to draw the Board's attention to the abuse of this process. A press release went out the day before yesterday from AIDS Healthcare Foundation, and if you want to talk about rhetoric, that's where the rhetoric is. The use of this Standards Board process and the use of Cal/OSHA resources to further an outside agenda by non-stakeholders is appalling. This press release uses the Cal/OSHA citations, revealing specific information regarding a performer and seeks to politicize this process."

“I was not aware of my sexual health and well-being in the way that I am; nowhere even close to it," admitted performer Janice Griffith, "and the regulations and protocols we have in place for testing make me feel very safe; I'm very comfortable with them, and we've implemented them ourselves because we know our bodies best. We would just really like it if you could listen to us about what is going on in ourselves. The way that AHF has pushed and gone about their agenda is just honestly mildly insulting because we haven't had an on-set transmission of HIV in over 11 years. We have been very careful. We take care of each other. We know what we've doing with ourselves and the protocols we have in place keep us safe."

The next speaker, performer Verta, challenged the Board's expertise in ruling on this issue.

"Since you're graciously hearing our voices once more, allow me to ask a history question: How many industries have had their regulations decided by parties that do not, have not and have never and will never work in that field and are also not safety or union representatives?" she asked. "I truly believe this is something we need to address. We are trying to be a part of this process, to create regulations that make sense for what our industry currently looks like. It's easy to push away self-accountability. We are not. We are trying to accept responsibility for ourselves and our safety and our work."

Another industry supporter was Dr. Hernando Chavez, a psychology professor and licensed family therapist, who supported both voluntary barrier use and pre-exposure prophylaxis (PrEP) medication to guard against HIV infection, such as Truvada.

"As a sex educator, and also as someone who does sex research, the exclusion of PrEP and other forms of more modern reproductive health measures to me is irresponsible, and I find that to focus solely on barrier methods isn't the most effective way for us to be looking at this issue from a holistic perspective," he said. "When you look at the research, much of the barrier usage of condoms with typical use can be 10, 15, 20 percent lower than the use of PrEP, so I think we have to ask ourselves, is barrier enough? And knowing the typical use rates within research and the failure rates, I think we can do better, and if we're here truly to support this industry in trying to find the most positive means of helping and supporting this industry through health measures, I think we have to invite them into the conversation."

Perhaps one of the most eloquent speakers was veteran actress Julia Ann, who actually apologized to the Board for having been in such a hurry to get to Walnut Creek in time for the meeting that she'd forgotten her bra.

"There was a time when the industry was smaller," Ann noted. "There was a time when the internet didn't exist. There was a time when it was more easy to narrow down who the industry really was, because you had performers, and you had producers and companies, and there wasn't a broad spectrum; that's all there was. But now, with the internet, you can't really say 'the industry' anymore because the industry is people we can't even reach as a common producer, a common performer. These are husbands and wives in bedrooms in their homes that are only making a living off of just being together, so please understand that your regulations go beyond a location, a movie set, a big company, a talent that's hired by an agency. They're not, so your regulations really have to be able to conform to the mom and pop, to the couple that's sitting at home saying, 'You know, we're going to make our rent; we're making a living and we're making a business,' just with each other. They're never going to be able to conform with something and they'll never be able to actually handle something that's unreasonable... It's kind of hard to say, 'I'm sorry but we have to barge into your home as a husband and wife and regulate you in your bedroom.' There has to be a way in order to make them not feel uncomfortable in their bedroom as well." (Two of the following speakers, Justin and Alice Wilson, described themselves as just the sort of home-based performers that Ann had been referring to.)

Ann also noted that the industry opposes Prop 60, the ballot initiative that would, among things, allow ordinary citizens to sue performers and producers over lack of condoms, and that that is another expensive battleground for the industry.

"We don't have the ability to fight them [AHF] financially," she charged. "We're outwitted, we're outfinanced, we're out-everything and we're just common people trying—" At this point she began to sob, apologizing that, "I get very emotional," and urging the Board, "Please try to be positive."

Though most of the pro-industry speakers were based in Los Angeles, there was also a contingent from the San Francisco area, and one of the most prominent ones was Mr Pam, a director for NakedSword, who's been in the industry for nearly 12 years shooting mostly gay content.

"I love what I do," she stated. "I'm a videographer/photographer; I'm right there in the trenches, making sure the models are safe. I have always shot condom porn and will probably continue to shoot condom porn for a while now. Condoms are not the future of porn. PrEP, pre-exposure prophylaxis, Truvada, is a great measure against stopping the antibodies for HIV. I'm also testing. I fully support you adopting Petition 560. Free Speech Coalition works amazingly well for the adult entertainment industry. I don't believe that AHF has our best interests in mind. ... There are a lot of HIV positive performers, so we work with their status and communication and testing to match people's statuses: Positive to positive, negative to negative; people on PrEP with other people on PrEP, making sure they take their meds and their HIV is undetectable. I want to continue doing that."

Finally, Free Speech Coalition Executive Director Eric Paul Leue took the floor, and laid into AIDS Healthcare's long-running campaign to force barrier use.

"AIDS Healthcare Foundation is the only worldwide health organization that opposes the use of anti-retroviral medication as a form of prevention of HIV transmission," Leue noted. "As AIDS Healthcare Foundation is the only organization worldwide that opposes that, it's just become very evident that they actually don't know what they're talking about. Further, let me make clear before I offer the detail of what I'm passing on to you, there's many more ways as you know to reduce risk than just barrier protection, and what I look towards is sharing positive control experiences when we look towards engineering and administrative controls that are in place in the industry and sharing those and implementing those through 560 with the guidance of this body and the Division.

"AHF uses Cal/OSHA and this body for its own political agenda. They have absolutely no shame. Yesterday they leaked information to reporters about the legal name and home address of a female performer who performs primarily with her own boyfriend, only to turn them into PR, a press release advertising their misguided ballot initiative, Proposition 60 which you've heard about today, that is opposed by all major HIV organizations as well as the Republican and Democratic and Libertarian parties. How did they get those details? Well, apparently the Division [of Occupational Safety and Health aka OSHA] sent them an unredacted citation copy," he charged. "This is not standard practice, and to us and to the performers in this room, it is worrisome to understand that that is how the Division works with AHF and it calls into question whether the Division is factually unprejudiced in their proceedings with our industry. This type of bullying is how AHF tries to shut up people from participating in this regulatory process. We now have a female performer who is so frightened about her name and address being disclosed from the documents the Division has shared with AIDS Healthcare Foundation, that she is likely going to have to move into a safe house. This is absolutely horrendous and this what we've spoken about since the beginning: Privacy must be the prime directive in protecting our workers.

"The Standards Board, I'm sure, does not think that performers will show up to a stakeholder meeting where they're going to become the next target of AIDS Healthcare Foundation's harassment," he added. "It seems that Cal/OSHA is maybe just not interested or doesn't understand what it means to create a safe space where this body will learn what the workers in our industry need and want without the fear of being attacked. AIDS Healthcare Foundation has even gone so far as to sell off seats on your advisory committees and stakeholder meetings and offered folks cash if they take AIDS Healthcare Foundation's position... Simultaneously, AHF is asking also the Board not to even have stakeholder meetings while they sell off the seats and rather just implement their outdated petition from 2009. We all know, who work in public health and in science, that science moves fast, and seven years is a damned long time. You and this body are just simply being played by AIDS Healthcare Foundation. We ask our workers to be protected from this kind of harassment and these kind of attacks. This kind of bullying and shaming of our workers is unbecoming of this body. We ask that you dismiss Petition 557. AIDS Healthcare Foundation had seven years to work with the Division, get a proper stakeholder input and build a regulation that would be accepted. February as well as every meeting since has shown that that is not possible. Dismiss 557 and please move forward with Petition 560; offer the workers in this industry a safe space where they're not going to be harassed, attacked or bogged down by the politicizing of this body through press releases and other things where personal details are being revealed. This is a special interest group with deep pockets. Our workers are workers; they don't have these pockets but they do deserve real protection, and that's what 560 advocates for and that's what we ask you to please move forward with."

Other industry personnel who spoke in favor of Petition 560 included Marcello, Brock Dume, Owen Gray, Ariel X, Arabelle Raphael, Iona Grace, Isabelle Dressler, Nikki Darling, Mona Wales, and Mimosa, as well as lobbyist Kevin Bland.

Of course, non-stakeholder AHF had a couple of familiar employees/patients offering pro-barrier statements as well, including its senior director of public health, Whitney Engeran-Cordova, and its director of advocacy and policy eesearch, Adam Cohen, as well as former performers Cameron Adams and Joshua Rogers.

"As you all know and as mentioned by the staff, federal minimums require barrier protection, period," Engeran-Cordova stated flatly. "Discussion of pre-exposure prophylaxis for HIV or other STDs is actually not at issue. It could be useful, it could be helpful, but it doesn't meet the standard of a barrier. In fact, the staff report says the following: 'The petition proposal for new Section 5193.1 requests the Board make amendments to existing [bloodborne pathogen] protections that would render the California standard less protective than the federal equivalent standard.' That's a lot more important than the rhetoric I think you're gonna hear today."

When Cohen spoke, he falsely accused Free Speech Coalition of spreading lies about the issue, claiming that Leue (whom he incorrectly described as FSC's CEO) "made the public claim that the federal bloodborne pathogen standard 'are for hospitals,' adding, "On the same day, an outspoken Board member of the Free Speech Coalition countered the fact that existing regulations currently require condoms in the adult film industry by saying 'which it doesn't.'" However, a plain reading of Health Code Section 5193 supports both of those FSC statements.

"We respectfully request that the Standards Board be cautious in voting to send Petition 560 to Cal/OSHA," Cohen added. "While there are many serious concerns, the one that troubles me the most is that the Free Speech Coalition recommends providing antibiotics to performers before working"—another complete falsehood.

For their parts, both Adams and Rogers gave the same scripted statements they've recently been using since the industry called them on the claim that they were infected while shooting adult content on a set: "I became HIV positive in 2013 while working in the industry."—a clear attempt to fool the Board into thinking that they had been infected while shooting porn, though that has been proven false.

Perhaps the most disappointing pro-Petition 557 speaker was Jennifer Ketcham, who for roughly eight years was known as actress Penny Flame, but who now holds a bachelor's degree in psychology and was recently awarded a master's in social work. She now works as a medical social worker.

"Because my history as a performer provides me with a personal level of insight into the dynamics of privilege and oppression that many of my colleagues don't have, I am heartily grateful for the time I spent in the business," she began, adding, "Now, seven years out of the business, I can't help but reflect on my time in the industry with awe at how disconnected I was from the policies that directly impacted me. This disconnection was in part because as a performer, I was replaceable. I had an openly acknowledged short shelf life and my primary goal was to make money and get out. I believed in the mythology around testing that Petition 560 perpetuates. I was socially trained by my peers and employers to believe that everyone was clean until proven otherwise. I also knew that any request for personal protective equipment would create a new barrier to me meeting my financial needs."

Ketcham went on to describe the differences between healthcare afforded to employees in California as opposed to what performers, many of whom are independent contractors, are provided by production studios.

"In healthcare, I know that if my place of employment fails to create a safe work environment and I contract an incurable disease in result of their negligence, there will be serious repercussions. That sort of accountability doesn't exist in the adult film industry," she claimed. "I recognize one of the greatest challenges in creating meaningful policy, policy that effectively and efficiently empowers the people it's meant to serve, is finding language both broad enough to be interpreted appropriately by a diverse population and narrow enough to be applied to a variety of specific instances. An even greater challenge is regulating an industry that historically refuses to be regulated and has the money to push back. But just because the people who can afford to fight Petition 557 say that testing is sufficient doesn't make it true... In my experience, both the healthcare industry and the porn industry are filled with creative, bright and vibrant and brilliant individuals, many of whom are my friends. Our performers deserve better protection than they currently receive."

After the Public Meeting portion of the Standards Board meeting was completed, the Board turned its attention to other matters, and most of the industry supporters left—but the Board wasn't done with the issue yet, as noted in our previous article.

But with the public gone, most of the Board members apparently felt free to express their true thoughts concerning the idea that testing and PrEP together was a viable solution to the industry's perceived STD problem.

"Moving forward, employee safety is our charge," stated Board member Dave Harrison, who also expressed dismay at predictions that if barriers are required, the industry will go underground. "We can't regulate—we keep hearing that there is no HIV cases within the industry and there's millions in the general public. We don't regulate the general public, so just keep the discussion to industry and what we're talking about here."

"I support the establishing of a committee," began Board member Patty Quinn, "but I just do want to point out that what we are agreeing to, and I definitely agree that we don't have the option of adopting a federal standard less protective than the adult film industry's and I think that isn't code for anything, but basically, as it says in the preamble, the federal standard requires the use of condoms when bloodborne pathogens are there, and therefore, what we will be dealing with is not having a whole discussion about the non-use of condoms, the substitution of other methods than condoms, and we're talking about a lot of things in addition to, but the barrier protection is still required by both Cal/OSHA and Federal OSHA."

Board member Laura Stock agreed, adding, "A huge amount of work on this has already been done. We heard months and months of testimony of all kinds, and my concern is to have the discussion not focus on issues that have already been decided or determined and that we move as expeditiously as possible through the process so we can finalize this once and for all... I hope that the discussion... can really be confined to those issues that are legitimate topics of discussion and would exclude those issues that are not, that exclude those topics such as data that talks about effectiveness of testing versus condom use, for example. That has already been discussed and a determination has been made, as Patty said, and others, that that would not be commensurate with federal and state standards, so I am hoping that that is not part of the discussion but that the additional things that will be discussed, keeping in mind the requirement to be as effective as federal and state standards."

While a couple of the Board members wanted to avoid limiting the discussion, seeing some relevance in discussing other methods of avoiding STD infection, and also the medical privacy concerns that had been brought up in response to AHF's previous petition, all were clearly of the belief that the health standard, whether California's or federal, requires barrier protections during sex scenes—so the adult industry had better prepare itself for a court battle, since the Standards Board members have clearly already made up their minds as to where they stand on the subject of barrier protections.

UPDATE: The Cal/OSHA Reporter (subscription only) covered the hearing in its Vol. 43, No. 32 issue, reporting some of what's stated above, but included the following caveat: "Publishers Note: Cal/OSHA Reporter agrees with much of its constituency and regrets having to cover this issue. However, providing coverage of Cal/OSHA is our job, and to the extent this is happening we keep everyone advised. Informing you about how the government spends its time and your tax dollars is part of our job."