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Sep 14 2013

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LEGAL OP: Brian Chase, AHF Attorney Who Represented Us, Gives the World a Porn Valley Breakdown – KEEPER!

audit1EDITORIAL: FromTheFreeLibrary.com The author is Brian Chase, one of the AHF attorneys who took our lawsuit pro bono. You know, the one that ended up in bankruptcy and the FEDERAL bankruptcy trustee DESTROYED our evidence in the middle of an active lawsuit. He knows. This is beautifully written and a good place to begin the process to criminalize pornography or at the least, imprison the violators and predators and put a system consistent with that for the legal Nevada brothel system.

American workers are just that. They ALL deserve workers rights and protections. Producing pornography is LEGAL in California but almost everything Porn Valley does IS NOT. Shut it down and give us back our daughters. Give us back our innocence!

God Bless You, Brian, Michael and AHF. Thank you for all that you do 😉

Porn Valley. You FAIL at LIFE! SHUT IT DOWN!

(UPDATE: As I’m preparing this for posting, I find out Vivid Entertainment shot a secret scene while under a supposed shutdown. What’s even worse, they used a male performer who had shot with Cameron Bay, the female performer just diagnosed with HIV, AT THE SHOOT she may have caught the disease at. It’s been less than the CDC’s recommended quarantine period and THEY USED HIM TO SHOOT THIS SECRET SHOOT. More details to come! fievel-282x300stevehirsch21

 

 

 

 

First Kinkdotcom and now Vivid. That’s target’s #1 and #3. Derek Hey is #2. Curious to see where that slimey bastard fits into all of this. It’s Derek’s girls who have always been Vivid’s contract girls. And it’s Derek and Mark Spiegler who send their girls to Kinkdotcom for torture to break them down and reprogram them as sex slaves. Derek Hey isn’t even an AMERICAN CITIZEN. Why is this allowed to continue??

handcuffsINTRODUCTION

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.

I. 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.

II. 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.

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

A. 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 behalf, as well as on behalf of other employees, without meeting the statutory requirements for a class action. (35) PAGA provides that

“[n]otwithstanding any other provision of law, any provision of [the California Labor Code] that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of [the California Labor Code], may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in section 2699.3.” (36)

Any penalties recovered under the statute are split, with 75% of the penalties going to the State and 25% going to the aggrieved employee.

As a subdivision of the Labor and Workforce Development Agency, regulations promulgated by Cal/OSHA could trigger liability under PAGA. California Labor Code section 6427 provides for fines of up to $7,000 per violation of “any occupational safety or health standard.” Labor Code section 6429 provides for penalties of $5,000 to $70,000 for willful or repeated violations of any such standard. PAGA also provides for recovery of attorneys’ fees.

Thousands of adult film scenes are produced every year, and the vast majority of producers fail to have performers use condoms or otherwise protect employees from exposure to potentially infectious bodily fluids. Each and every scene is a separate violation of the California Code of Regulation. (37) If a performer invoked PAGA in a claim against a large adult film producer, the potential recovery could be staggering.

B. Privacy Laws

Improper disclosure of STI test results can also trigger liability. The adult film industry relies on a system of easy online access to performer STI test results to facilitate production. This system is of questionable legality and has resulted in widespread breaches of performer privacy, including the online posting of thousands of performers’ real names, home addresses, and other personal data on a website styled “pornwikileaks.com.” (38)

Before its closure, AIM provided a centralized online repository for performer STI test results. AIM required performers to sign a document captioned “Authorization to Release Test Results (HIV+G/C+RPR)” (AIM Release). The AIM Release states that AIM could release the results of medical testing “to any duly authorized agent of AIM or others as AIM may deem appropriate as to the safety of the community.” The AIM Release also included a waiver of liability to insulate AIM, its employees and agents, and performers’ individual talent agents, from any liability for damages incurred as a result of the disclosure of medical testing results.

The AIM Release was defective in several respects. (39) A medical release is invalid in California if it does not comply with certain legal formalities. (40) What had been the largest STI testing facility within the adult film industry allowed thousands of disclosures of private medical information based on a seriously defective release form.

Any release form authorizing disclosure of STI tests to multiple, unnamed adult film producers would be of questionable legality. California Health and Safety Code section 120980(g) provides that “[w]ritten authorization is required for each separate disclosure of the test results, and shall include to whom the disclosure would be made.” California law simply does not provide for blanket disclosures of private medical information to an unknown number of unnamed people. (41)

California law sets damages for disclosures of private medical information at $1,000 per violation pursuant to section 56.36(b)(1) of the California Civil Code, and punitive damages up to $3,000 per violation pursuant to section 56.35 of the same. (42) Considering the sheer number of times STI results are accessed by the producers of adult films, the potential liability of the facility providing access to the results is enormous.

Two former adult film performers, Diane Grandmason and Bess Garren, filed a class action suit against AIM alleging violations of the aforementioned privacy laws and the common law tort of invasion of privacy. (43) The matter was filed in California state court, but removed by AIM to the Central District of California. (44) The Court entered a tentative ruling granting class certification, but this order was stayed due to AIM’s bankruptcy. The Court found that the class was sufficiently numerous to support a class action, and that common issues of fact and law existed throughout the class, holding:

   Among other things, all class members will share the overarching
   issues of whether they were all required to sign particular release
   forms, whether their information was then made available over the
   Internet or some other electronically available repository, whether
   Defendant's release is valid under the laws governing disclosure of
   medical information, and whether the releases of such information
   outside the strictures of the tightly-circumscribed
   legally-permissible disclosures would serve as "public disclosures"
   of "private facts." (45)

The Court went on to note that the subjective intent of performers in executing release forms did not obviate the plaintiffs’ claims. (46) “If the release falls short of the legal requirements for a release of that nature, no particular circumstances related to any one plaintiff would affect that fact, and the ‘intent’ of any class member seems, without a great deal of further explanation, plainly irrelevant.” (47) The Court then noted that the named plaintiffs’ claims were typical of the class, satisfying the third requirement for a class action under Federal Rule of Civil Procedure 23(a)(3).

APHSS, which seeks to provide services similar to AIM’s, claims that it has alleviated privacy concerns by creating a database that does not contain actual STI test results, but only indicates whether an adult film performer is cleared to work. According to the organization’s website, “The database contains only information needed to verify performers’ availability, which is updated when you are tested at an APHSS.org participating testing facility.” (48) This approach, although more privacy-friendly than AIM’s, still allows an unknown number of adult film producers unfettered online access to STI test results, which violates California law. A “clear to work” designation would necessarily indicate that a performer has gone to an STI testing facility participating in APHSS, and had tested negative for various STIs. The law prohibits unauthorized release of medical information, including STI test results. Again, it appears that privacy practices related to STI test results will continue to expose elements within the adult film industry to significant potential liability.

C. Simple Negligence

From medical malpractice to highway collisions, simple negligence is ordinarily the go-to cause of action for redress of personal injuries. But in the case of sexually transmitted diseases within the adult film industry, ordinary negligence claims are unlikely to be the best vehicle for enforcing performers’ fight to a safe workplace.

Simple negligence has some surface appeal as a cause of action. Producers and directors of adult films assume a duty of care to performers when the producers and directors instruct performers to engage in specific sexual acts. That duty is breached when, against the advice of public health experts, producers and directors require performers to engage in penetrative sex without condoms to protect them from STIs. The failure to use condoms is an easily predictable causative factor in the spread of STIs, and performers suffer damages due to infections resulting from these STIs.

Damage awards in STI transmission cases can be quite large. A California jury recently awarded $6.75 million in damages to a fifty-six-year-old woman who was infected with genital herpes by her boyfriend. (49) Comparably large damage awards are not uncommon in lawsuits brought on behalf of plaintiffs who have been infected with STIs, particularly diseases like HIV and genital herpes, which are controllable with medication, but remain incurable. A recent lawsuit involving an HIV infection resulted in a bench verdict of $12.5 million. (50) Even cases where no transmission of an STI takes place can generate large awards. Marc Cristian, Rock Hudson’s former partner, was awarded $21.75 million (later reduced to $5.5 million) based on his fear of contracting HIV and AIDS, even though Mr. Christian remained HIV negative. (51) Although the size of the verdict in favor of Mr. Christian is an outlier, fear of exposure to HIV without actually contracting the virus remains actionable. (52)

Furthermore, even those who do not directly infect another person with an STI may be held liable under certain circumstances. A New York court recently ruled that a man could sue the alleged source of his wife’s genital herpes infection, a man with whom the wife was having an affair, for indirectly infecting him. (53) Accordingly, the spouse or other sexual partner of a performer may well have a cause of action against a producer if he or she is exposed to an STI.

Despite the potential for large damage awards, the workers’ compensation exclusivity doctrine and the difficulty of proving that an infection stems from any particular adult film production would most likely render widespread simple negligence claims for transmission of STIs unworkable as a cause of action in the context of adult film production.

D. Defenses to Negligence Claims

1. Liability waivers

Performers are frequently required to execute waivers of any claim for liability due to on-set transmission of STIs. (54) It is, however, unlikely that these contractual provisions are enforceable. (55) In California, a contract must have a “lawful object” and if it does not, it is void and unenforceable. (56) For purposes of determining if a contractual objective is lawful or unlawful, “unlawful” is defined as “(1) [c]ontrary to an express provision of law; (2) [c]ontrary to the policy of express law, though not expressly prohibited; or, (3) [o]therwise contrary to good morals.” (57) Although there is no case law on point, it is reasonable to speculate that courts would hold that a general waiver of liability for STI transmission stemming from workplace sexual intercourse without condoms violates “the policy of express law” as reflected in regulations requiring barrier protection for employees who might be exposed to blood or “other potentially infectious materials.” (58) Although the definition of “good morals” is clearly subjective, a strong argument can be made that requiring a person to assume the risk of contracting an ST1 during the course of his or her employment falls outside the legal bounds of contracts in California.

2. Workers’ Compensation Exclusivity

The workers’ compensation exclusivity doctrine generally protects employers from negligence and other tort claims brought by employees. (59) The doctrine is particularly broad in California. (60) Producers of adult films have, however, repeatedly and publicly asserted that adult film performers are independent contractors, rather than employees. (61) If performers in adult films are independent contractors, as performers and producers claim, then producers could be held liable for STIs caused by their negligent failure to provide performers with condoms or to take other reasonable steps to prevent the spread of disease. (62) The producers of adult films are, however, incorrect in their assertion that performers are not employees.

California employs an “economic realities” test, first articulated in Rutherford Food Co. v. McComb, to determine whether a person is an employee or a contractor. (63) Under the economic realities test, courts analyze employment status based on whether the putative employee has control over how the work is performed. Although some adult film directors and producers might take a fairly hands-off approach, it is difficult to imagine how one could argue that people performing sexual acts at the direction of a third party are not under that third party’s control. Statutory law in California also supports the conclusion that performers are employees. For purposes of workers’ compensation, independent contractors must “render service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” (64) It would be very difficult to shoehorn adult film performers into that definition, as the producers and directors of films generally control “the means” by which an adult film is created. Employees, on the other hand, are defined broadly as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” (65) As performers are employees, at least in California, the odds of performers successfully bringing negligence claims against producers appear slim. (66)

E. Misclassification of Employees as Independent Contractors

In the effort to avoid workplace safety regulations by classifying adult film performers as independent contractors, the producers of adult films may have inadvertently opened an entirely new avenue of liability. Although the deliberate misclassification of employees as independent contractors is unlikely to shield employers from workplace safety rules, it can expose employers to significant liability under a measure recently signed into law in California.

California Senate Bill 459 (SB 459) significantly increases the penalties for employers who willfully misclassify employees as independent contractors. (67) Civil penalties range from $5,000 to $25,000 per violation. Because the penalties in question are authorized under the Labor Code, they can be bundled by misclassified employees in a single action under PAGA.

Furthermore, SB 459 provides that any person “who, for money or other valuable consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status for that individual shall be jointly and severally liable with the employer if the individual is found not to be an independent contractor.” (68) Talent agents, industry groups, or others who encourage or facilitate adult film producers’ misclassification of performers as independent contractors could face very significant liability.

SB 459 also prohibits charging misclassified independent contractors fees or deductions from compensation, if those fees and deductions would not be permissible to charge an employee. The adult film industry requires performers to pay for their own STI tests. (69) That practice is unlawful, at least in California. California Labor Code section 222.5 provides:

   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. (70)

The law is clear on its face. Performers cannot be required to pay for STI testing as a condition of employment, but the industry has acted in violation of this law for years. The combination of PAGA and SB 459 significantly increases the likelihood that adult film producers will eventually face lawsuits stemming from violations of workplace health and safety laws.

V. WHY SO FEW LAWSUITS?

The most likely, and unfortunate, explanation for the dearth of litigation stemming from workplace health and safety issues within the adult film industry is fear of retaliation. The industry’s past response to workers who speak out on issues related to worker safety, health, and privacy is instructive.

In August 2010, a twenty-four-year-old man named Derrick Burts began working in the adult film industry. He worked in both the heterosexual and homosexual production. At some point in the fall of 2010, Burts contracted HIV. (71)

In December 2010, Burrs came forward to reveal his HIV status and to criticize health and safety practices within the industry, including the failure of AIM to assist him with access to proper medical care. (72)

The response from industry sources was swift and aggressive. AVN, one of the largest outlets of adult industry news, immediately reported that Burts had posted an advertisement for work as an escort. (73) Escorting work is hardly uncommon among adult film performers. (74) But “crossover” work, meaning performing in both the gay and straight adult film industries, and male performers who work as gay escorts, is frowned upon. Many within the adult film industry argue that gay sex work, including escorting or performing in gay adult films, exposes heterosexual performers to an increased risk of HIV. (75) In fact, the stated rationale behind the revelation of thousands of adult film performers’ personal data on “pornwikileaks.com” was to expose “crossover” performers and drive them out of the heterosexual side of the industry. (76) Burts’ gay sex work was used as a pretext to attack and intimidate him.

Many within the industry continue to revile and target Burts. Burts was recently arrested on charges that he took two used television sets from the hotel where he worked. Industry sources reported the arrests and Burts’ past minor legal problems, with thinly veiled threats that he might be taken into police custody if he dared to appear at scheduled public speaking events. (77) An industry blog recently published a lengthy and lurid expose on Burts, (78) and adult film industry insider Michael Whiteacre (using the screen name “mrwhiteacre”) unleashed a torrent of abuse on his Twitter feed stating:

   The better question is will he show up at UCLA on Oct 11--if he
   does, a birdy tells me somebody will be there to arrest him.

   Derrick Burts: gay escort (he admits he gave a hand job off
   Craigslist), admitted BAREBACK swinger, liar, and fugitive.

   If Derrick Burts shows up n court 2morrow I wonder whether he'll B
   put on a bus 2 Van Nuys or 2 Westminster--'cuz he's wanted in 2
   counties.

   Why don't @latimes mention that Derrick "Rent Boy" Burts was also a
   counselor at a Christian Youth camp while he was in porn? (79)

The very real threat that, if a performer speaks out against industry practices others within the industry will publish as much damaging or embarrassing information as they can find about them, appears to be a very effective deterrent to litigation and advocacy by performers.

When Monica Foster, a former performer, recently expressed anger regarding the breach of her confidential information, the parties responsible for Pornwikileaks viciously targeted her by publicly posting the address and a photograph of her home and her parents’ addresses and photographs of their homes, and orchestrated a campaign to inform the school where the performer’s mother works as a teacher about the performer’s work in adult films. (80) Ms. Foster states:

   I'll never forget the terror of not only seeing photographs of my
   apartment building that I resided in at the time along with my real
   name, phone number, and other personal information listed on that
   site, but photographs of my mother's, father's, and sister's faces,
   residences, addresses, satellite photos of their neighborhoods,
   places of where they were employed, estimated home values and other
   details of their lives as well listed.

   Negative, slanderous racial and homophobic remarks were plastered
   in regards to myself and family members on multiple threads
   throughout the pornwikileaks website and it didn't stop there.
   Myself and my family members consistently received threatening
   emails and phone calls--even phone calls from the site's
   users/members were made to my mother's place of employment and to
   the manager of my apartment building. (81)

The Pornwikileaks incident underscored just how vulnerable adult film performers are to public disclosures of private facts. The very legitimate fear of exposure, blacklisting, and public attacks by others within the industry seems to be a sufficient incentive against any form of activism by adult film performers, including litigation.

There are many other possible explanations for the fact that performers have not brought litigation against producers in the adult film industry. Smaller adult film production companies may be insolvent or hide their assets. Producers of adult films frequently operate under multiple corporate identities, making it difficult to determine which entity is an “employer” subject to workplace safety regulations. And smaller adult film producers simply dissolve whatever corporation it is that they formed to produce any specific adult film, and then immediately reincorporate as a new production company.

Tracing individual STI transmissions among a sexually active population can also be quite problematic. If a performer worked ten times during a given month when he or she contracted herpes, it would be very difficult to determine which production company could be held liable for the infection. The difficulty of tracing specific exposures was illustrated when Dr. Francisco Meza of the U.S. Centers for Disease Control and Prevention attempted to investigate the potential exposure incidents surrounding Derrick Burts’s contraction of HIV. Dr. Meza reported that it was difficult to investigate the matter at all due to the refusal of adult film companies and performers to cooperate with the investigation, and the frequent use of pseudonyms by performers. (82) Although many causes of action for workplace safety violations do not require proof of damages, many performers are probably unaware that they can assert their workplace safety rights without actually tracing a specific transmission to a specific sexual act on set.

It is possible that adult film performers simply lack access to legal resources. Attorneys may be unwilling to try to assert new and untested claims against an industry that, at least in the First Amendment realm, has a reputation for aggressive litigation and not-infrequent legal victories. There is also significant stigma against adult film performers that might discourage attorneys from taking performers on as clients. As one observer of the industry has noted, “Porn stars–people think they’re not worth the time. The public sees these people as disposaole.” (83)

Like many other elements of the adult film industry, there is very little solid data regarding performer attitudes and preferences. Many performers may want to change the industry but are afraid to take steps to do so, or they may be perfectly content with the status quo. One thing is clear: adult film performers have the potential to wield significant legal leverage over others in the industry.

(1.) The industry’s most well-known contribution to popular culture, the phrase “money shot,” stems from the most-probably illegal practice of refusing to pay a male performer unless he is able to climax at the finale of a scene. See Money Shot Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/money+shot (last visited Nov. 5, 2011).

(2.) Because adult film production in the United States is largely centered in the Los Angeles area, this article will primarily focus on potential liability under California law with some limited discussion of federal law and the law of states other than California.

(3.) See, e.g., 18 U.S.C. [section] 1461 (2006); ALA. CODE [section] 13A-12-191 (2011); ARK. CODE ANN. [section] 5-68-405 (West 2011); CAL. PEN. CODE [section][section] 311-312.7 (West 2011); FLA. STAT. [section] 847.06 (West 2011); IDAHO CODE ANN. [section] 18-4103 (West 2011); MINN. STAT. ANN. [section] 617.241 (West 2011); NEV. REV. STAT. ANN. [section] 201.249 (West 2011); R.I. GEN. LAWS ANN. [section] 11-31-1 (West 2011); VA. CODE ANN. [section] 18.2-374 (West 2011).

(4.) See Jason Krause, The End of the Net Porn Wars, A.B.A.J., Feb. 2008, at 52, available at http://www.abajournal.com/magazine/article/the_end_of_the_net_porn_wars/.

(5.) See Spencer S. Hsu, U.S. District Judge Drops Porn Charges Against Video Producer John A. Stagliano, WASH. POST (July 17, 2010), available at http://www .washingtonpost.com/wp-dyn/content/article/2010/07/16/ AR2010071605750.html.

(6.) People v. Freeman, 758 P.2d 1128 (Cal. 1988) (holding that paying performers to engage in sexual activities in a non-obscene but sexually explicit film was not “pandering” under California law); New Hampshire v. Theriault, 960 A.2d 687 (N.H. 2008); see also Andrew Gilden, Sexual (Re)consideration: Adult Industry Contracts and the Problem of Enforceability, 95 GEO. L.J. 541, 543-44 (2007).

(7.) See Dan Ackman, How Big Is Porn?, FORBES (May 25, 2001), available at http:// www.forbes.com/2001/05/25/0524porn.html.

(8.) Rebecca Leung, Porn in the U.S.A., CBS NEWS (Dec. 5, 2007), http://www .cbsnews.com/stories/2003/11/21/60minutes/main585049.shtml.

(9.) Benjamin Wallace, The Geek-Kings of Smut, N.Y. MAGAZINE (Jan. 30, 2011), http://nymag.com/news/features/70985/.

(10.) See Jules Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146 (9th Cir. 2010) (dismissing an actress’s claim of violation of California’s right of publicity law).

(11.) Deupree v. Workers’ Comp. Appeals Bd., 2008 WL 4191236 (Cal. App. 2d Aug. 19, 2008).

(12.) See Binh Y. Goldstein et al., High Chlamydia and Gonorrhea Incidence and Reinfection Among Performers in the Adult Film Industry, 38 SEXUALLY TRANSMITTED DISEASES 644 (2011). The article finds a 14.3% Chlamydia infection rate and a 5.1% gonorrhea infection rate among adult film performers and reinfection rates as high as 26.1% within a single year. Id. at 646. Between 1998 and 2008, seventeen HIV cases were reported among performers in the heterosexual adult film industry. Id. In 2004, at least three female performers were infected with HIV by a single male performer. Id. Between 2004 and 2008, there were a total of 3,227 Chlamydia and/or gonorrhea cases reported by three facilities providing STI testing services to the adult film performer population. An unpublished report funded by the adult industry trade group Free Speech Coalition asserts that some earlier assessments of STIs among performers overestimated infection rates. That report, however, still concludes that infection rates among performers are quite significant. See Lawrence S. Mayer, Assessment of the Presentations of Drs. Kim Farley and Kerndt, FREE SPEECH COAL. (June 3, 2011), http://fscblogger.files.wordpress.com/2011/06/dr-mayer-report-fsc-afi-sti-06 -03-111.pdf.

(13.) Melanie M. Taylor et al., Epidemiologic Investigation of a Cluster of Workplace HIV Infections in the Adult Film Industry: Los Angeles, California, 2004, 44 CLINICAL INFECTIOUS DISEASES 301, 302 (2007).

(14.) Goldstein et al., supra note 12, at 648.

(15.) Christopher Beam, Porn Star Zero. Does Anyone Track the Sex Lives of Adult-Film Performers?, SLATE (Oct. 14, 2010), http://www.slate.com/id/2271167/.

(16.) Cease and Desist Letter from the L.A. Dep’t of Pub. Health (Dec. 9, 2010) (on file with author).

(17.) Sherman Oaks Clinic For Adult Entertainers Reopens Under New Name, L.A. DAILY NEWS (Feb. 4, 2011, 7:33:52 PM), http://www.dailynews.com/news/ci_17297792.

(18.) Rong-Gong Lin II, Porn Industry Health Clinic Closes–Again, L.A. TIMES (May 5, 2011, 8:14 AM), http://latimesblogs.latimes.com/lanow/2011/05/porn-industry -health-clinic-closes-again.html.

(19.) In re The Adult Indus. Med. Healthcare Found., 11-BK16270-MT (Bankr. C.D. Cal. May 19, 2011); In re AIM Med. Assocs., 11-BK16271-MT (Bankr. C.D. Cal. May 19, 2011).

(20.) Shaya Tayefe Mohajer, Porn Actor Tests Positive for HIV in Los Angeles, HUFFINGTON POST (Oct. 13, 2010, 11:13 PM), http://www.huffingtonpost.com/2010/10/13/ porn-actor-tests-positive_n_761157.html.

(21.) See EXCLUSIVE: Jenna Jameson Calls Porn Industry ‘A Ticking Time Bomb’ for HIV Scare, RADAR ONLINE (Oct. 15, 2010, 6:20 AM), http://www.radaronline.com/ exclusives/2010/10/exclusive-jenna-jameson-calls-porn-industry-a-ticking_ time_bomb_hiv -scare [hereinafter Jenna Jameson]. The adult film industry’s practice of blacklisting performers who insist on using condoms has also been evidenced by the testimony of former performers at public hearings. See, e.g., Summary Public Meeting/Board Meeting/Business Meeting, Cal. Dep’t of Indus. Relations, Occupational Safety & Health Standards Bd. 4 (Mar. 17, 2011), available at http://www.dir.ca.gov/oshsb/minutesMarch2011.doc.

(22.) Jenna Jameson, supra note 21.

(23.) Corida R. Grudzen et al., Pathways to Health Risk Exposure in Adult Film Performers, 86 J. URB. HEALTH 67, 73 (2009).

(24.) See Am. Med. Ass’n House of Delegates, Resolution 407(A-10) (Apr. 13, 2010), available at http://publichealth.lacounty.gov/std/docs/afi/AMA_AFIPolicy.pdf; Am. Pub. Health Ass’n: Policy Statement Database, Prevention and Control of Sexually Transmitted Infections and HIV among Performers in the Adult Film Industry (Nov. 9, 2010), available at http://www.apha.org/advocacy/policy/policysearch/default.htm?id=1396; Am. Soc. Health Ass’n, Statement on Worker Health and Safety in the Adult Film Industry (Mar. 2010), available at http://publichealth.lacounty.gov/std/docs/afi/ASHAAF_policy.pdf; The Cal. Acad. of Preventative Med., Open Board Meeting Minutes (Aug. 4, 2009); Nat’l Coal. of STD Dirs., Policy Statement on Worker Safety and Health in the Adult Film Industry (Oct. 2010), http://www.ncsddc.org/sites/default/files/ docs/final_ncsd_afi_statement_10_6_10_3 .pdf; Cal. Conference of Local AIDS Dirs., Position Statement: Worker Health and Safety in the Adult Film Industry (Feb. 4, 2011), available at http://publichealth.lacounty.gov/std/ docs/afi/CCLADAFI.pdf; Cal. STD Controllers Ass’n, Position Statement: Worker Health and Safety in the Adult Film Industry (Nov. 17, 2010), available at http://publichealth .lacounty.gov/std/docs/afi/CASTDControllerspolicy.pdf.

(25.) APHSS: The Evolving Replacement for AIM, ADULT PERFORMER ADVOC. (Aug. 28, 2011), available at http://www.adultperformeradvocate.org/2011/08/28/aphss-the -evolving-replacement-for-aim/; see also APHSS: ADULT PRODUCTION HEALTH AND SAFETY SERVICES, https://aphss.org/.

(26.) See APHSS: The Evolving Replacement for AIM, supra note 25.

(27.) CAL. CODE REGS. tit. 8, [section] 5193 (2011).

(28.) Id.

(29.) Id.

(31.) Id.

(32.) See Bloodborne Pathogens, 29 C.F.R. [section] 1910.1030 (2011).

(33.) Div. of Occupational Health & Safety, Vital Information For Workers and Employers in the Adult Film Industry, http://www.dir.ca.gov/dosh/adultfilmindustry.html (last visited Nov. 20, 2011).

(34.) CAL. LAB. CODE [section] 2699 (West 2011).

(35.) See Arias v. Superior Court, 46 Cal. 4th 969, 975 (2009).

(36.) CAC LAB CODE [section] 2699 (West 2011).

(37.) CAL. CODE REGS. tit. 8, [section] 5193 (2011).

(38.) Bill Applegate, HIV Clinic Targeted in Leak of Patient Data to the Internet, CHATSWORTH PATCH (Apr. 1, 2011), available at http://chatsworth.patch.com/articles/hiv -clinic-targeted-in-leak-of-patient-data-to-the-internet; Molly Hennessy-Fiske, San Fernando Valley Clinic Investigates Possible Leaks of Porn Performers’ Patient Information, L.A. TIMES (Apr. 4, 2011), http://articles.latimes.com/2011/apr/04/local/la-me-porn-wikileaks -20110404.

(39.) The AIM Release did not state “the name or functions of the persons or entities authorized to receive the medical information” in violation of California Civil Code section 56.11, did not contain “[t]he name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure” in violation of 45 C.F.R. [section] 164.508. The AIM Release further authorized an unlimited number of disclosures of H1V test results to an unlimited number of unspecified parties, in violation of Cal. Health and Safety Code section 120980, which provides that “[w]ritten authorization is required for each separate disclosure of the test results, and shall include to whom the disclosure would be made.” The AIM Release arguably violated several other provisions of law, including subsections (b), (g) and (h) of California Civil Code section 56.11.

(40.) See Colleen v. Fertility & Surgery Assoes., 132 Cal. App. 4th 1466 (2005) (holding that plaintiff’s medical release was invalid because it failed to meet requirements set forth in California Civil Code section 56.11).

(41.) An online system of STI test results might arguably be legal if access was restricted to the test subject. If an adult film industry STI test result clearinghouse were to give passwords to individuals who had taken tests, allowing them to access their own test results, most privacy issues would be alleviated because the records could only be accessed by a producer with the performer’s consent.

(42.) An award of punitive damages requires a showing of actual harm traceable to the disclosure.

(43.) In full disclosure, I represent Ms. Garren and Ms. Grandmason in this action.

(44.) Grandmason v. Adult Indus. Med. Health Care Found., No. CV10-6629GW(PLAx) (C.D. Cal. Jan. 27, 2011).

(45.) Id. (ruling on class certification).

(46.) Id. at 6.

(47.) Id.

(48.) FAQ, ADULT PROD. HEALTH & SAFETY SERVS., https://aphss.org/faq (last visited Nov. 11, 2011).

(49.) Behr v. Redmond, No. INC052881, 2009 WL 1200386 (Cal. Super. Ct. Jan. 10, 2009), rev’d in part, Behr v. Redmond, 193 Cal. App. 4th 517 (2011) (reducing compensatory damages to $1,575,600).

(50.) Bridge B. v. John B., No. BC271134, 2008 WL 5455877 (Cal. Super. Ct. Nov. 21, 2008).

(51.) Mandana Shahvari, Fear Of AIDS As A Cause of Action, 67 TEMP. L. REV. 769 (1994).

(52.) See, e.g., Cotita v. Pharma-Plast, U.S.A., Inc., 974 F.2d 598 (5th Cir. 1992); Marchica v. Long Island R.R., 31 F.3d 1197 (2d Cir. 1994).

(53.) Levine v. Werboff, 2010 WL 3068926 (N.Y. Sup. Ct. May 21, 2010).

(54.) One such contract employed by “Evasive Angels,” a production company formerly based out of Woodland Hills, California, states:

   I--UNDERSTAND THAT ACTING/PARTICIPATING IN AN ADULT FILM/VIDEO
   MAYBE [sic] HARMFUL TO MY HEALTH. I --, ASSUME ALL
   RESPONSIBILITY FOR MYSELF AND HEREBY AGREE NOT TO HOLD ANYONE
   (i.e. COMPANY, CORPORATION, PERSON, PRODUCER) SO-FORTH LIABLE FOR
   MY ACTIONS IN THIS FILM/VIDEO. I UNDERSTAND THAT IT'S POSSIBLE TO
   CATCH HIV OR ANY OTHER STD, DURING THIS VIDEO AND I DO NOT HOLD
   ANYONE LIABLE, MEANING EVASIVE [sic] ANGLES OR TTB PRODUCTIONS.

Document identified as “P. Zero 02113″ produced in discovery in Patient Zero v. Cal. Div. of Occupational Safety & Health, 2011 WL 4500041 (Cal. Sept. 22, 2011).

(55.) See, e.g., Gilden, supra note 6.

(56.) CAL. CIV. CODE [section] 1550(3) (West 2011).

(57.) CAL. CIV. CODE [section] 1667 (West 2011).

(58.) See supra notes 28, 32-33, for a discussion of these regulations.

(59.) See, e.g., CAL. LAB. CODE [section]3601(a) (West 2011).

(60.) California Labor Code section 3706 provides an exception to the exclusivity doctrine where an employer fails to pay for workers’ compensation insurance, and California Labor Code section 4558 provides for the loss of immunity where an employer removes protective features from certain mechanical equipment. California law does not provide for any other exceptions. The immunity applies even when an employer acts in violation of environmental or other safety regulations. See Gunnell v. Metrocolor Labs., Inc., 92 Cal. App. 4th 710, 714 (2001). Some states provide employees with broader remedies. Florida, for example, allows employees to recover for “intentional torts” which is defined as:

   [T]he employer engaged in conduct that the employer knew, based on
   prior similar accidents or on explicit warnings specifically
   identifying a known danger, was virtually certain to result in
   injury or death to the employee, and the employee was not aware of
   the risk because the danger was not apparent and the employer
   deliberately concealed or misrepresented the danger so as to
   prevent the employee from exercising informed judgment about
   whether to perform the work.

FLA. STAT. ANN. [section] 440.11 (West 2003). This provision would most likely expose adult film producers to tort liability in Florida, as the hazard of occupational exposures to STIs are well known to adult film producers.

(61.) See Chauntelle A. Tibbals, PVV–Cal/OSHA (Mostly Recap, Some Reflection), PORN VALLEY VANTAGE (June 8, 2011), http://pwonline.com/?p=811.

(62.) Some performers are convinced that, if they are classified as employees rather than as independent contractors, they could be forced to work with HIV-positive individuals. They assume or, more plausibly, they have been told by producers, that if condoms are employed in the production of adult films the refusal to hire HIV-positive performers would violate the Americans With Disabilities Act (ADA) and similar state laws barfing discrimination against people with HIV. Performer Ela Darling, who serves on the board of the industry-sponsored Adult Performer Health and Safety Services, states “as an employee, I cannot ask that my costars [sic] maintain the currently accepted standard of getting tested for HIV, Chlamydia, and Gonorrhea every thirty days, because it would be considered workplace discrimination.” Ela Darling, Interview Regarding Cal/OSHA, THE OFFICIAL SITE OF ELA DARLING (June 21, 2011), http://darlingela.com/blog/2011/06/interview-regarding -calosha. This fear among adult film performers is without any basis in law. The ADA allows an exception to its ban on discrimination based on HIV status where workplace activities pose a “direct threat” of HIV transmission within the workplace. Although the “direct threat” exception has never been directly applied to sex workers, it has been applied to certain HIV-positive medical professionals. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1284 (11th Cir. 2001), cert. denied, 535 U.S. 1096 (2002) (holding that an HIV-positive dental hygienist could not pursue a claim under the ADA); Mauro v. Borgess Med. Ctr., 886 F. Supp. 1349, 1352-54 (W.D. Mich. 1995), aff’d, 137 F.3d 398 (6th Cir. 1998) (holding that an HIV-positive surgical technician posed a direct threat to patients).

(63.) Rutherford Food Corp. v. McComb, 331 U.S. 722, 726-27 (1947); see also S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 769 P.2d 399, 405-06 (Cal. 1989).

(64.) CAL. LAB. CODE [section] 3353 (West 2011).

(65.) CAL. LAB. CODE [section] 3351 (West 2011).

(66.) Accord Maria de Cesare, Rxxx: Resolving the Problem of Performer Health and Safety in the Adult Film Industry, 79 S. CAL. L. REV. 667, 701-02 (2006). An attorney specializing in the defense of adult industry clients has come to the same conclusion. See Michael W. Fattorsi, The Condoms are Coming, XBIZ (Aug. 24, 2011), Error! Hyperlink reference not valid.; see also Deupree v. Workers’ Comp. Appeals Bd., 2008 WL 4191236 (Cal. App. 2d Aug. 19, 2008), cert. denied, 129 S. Ct. 1527 (2009) (finding that an adult film producer’s “control of the work, the nature of the filming, and the overall arrangement of the parties” supported the conclusion that a performer was an employee, not an independent contractor). The same conclusion has been reached by courts looking at other facets of the adult entertainment industry, including performers working as semi-nude and nude dancers. See, e.g., Moody v. Razooly, No. A099065, 2003 Cal. App. LEXIS 1730 (Cal. Ct. App. 2003).

(67.) CAL. LAB. CODE [section][section] 226.8, 2753 (West 2011).

(68.) Id.

(69.) Jane E. Allen, Actor’s Positive HIV Test Disrupts Filming as Clinic Traces OnScreen Sex Partners, ABC NEWS (Oct. 15, 2010), http://abcnews.go.com/Health/AIDS/HIV -Actors-Positive-Test-Unsettles-hub-us-porn/story?id=11892877.

(70.) CAL. LAB. CODE [section] 222.5 (West 2011).

(71.) Rong-Gong Lin II, Report Faults Porn Firms for Not Providing Information to Public Health Agencies, L.A. TIMES (Apr. 20, 2011), http://www.latimes.com/health/la-me -porn-20110420,0,65155.story.

(72.) Molly Hennessy-Fiske, HIV-Positive Porn Performer Speaks Out, L.A. TIMES (Dec. 8, 2010), http://articles.latimes.com/2010/dec/08/local/la-me-porn-hiv-20101208.

(73.) Mark Kernes & Tom Hymes, Derrick Burts Tells His Story at AHF Press Conference, AVN (Dec. 8, 2010, 3:53 PM), http://business.avn.com/articles/video/Derrick -Burts-Tells-His-Story-at-AHF-Press-Conference-419131 .html.

(74.) Mariah Milano, Mariah Milano on Porn Stars Escorting, A Double Standard, LUKEISBACK.COM (Sept. 4, 2011, 1:11 PM), http://www.lukeisback.com/?p=17992.

(75.) Richard Abowitz, How Did Porn Star Derrick Burts Get HIV?, THE DAILY BEAST (Dec. 10, 2010, 8:07 AM), http://www.thedailybeast.com/articles/2010/12/10/hiv -positive-porn-star-derrick-burts-gay-for-pay.html.

(76.) Adrian Chen, The Wikileaks Knockoff That Has the Porn Industry Terrified, GAWKER.COM (Apr. 1 2011, 3:25 PM), http://gawker.com/5788083/The-Wikileaks -Knockoff-That-Has-the-Porn-Industry-Terrified.

(77.) Mark Kernes, Will Fugitive Derrick Burts Show up at UCLA’s Condom Panel?, AVN (Sep. 28, 2011, 9:00 AM), http://business.avn.com/articles/legal/Will-Fugitive -Derrick-Burts-Show-Up-At-UCLA-s-Condom-Panel-449195.html.

(78.) Parker Burroughs, The Dark Past of AHF’s Poster Boy, Derrick Burts, LUKEISBACK.COM (Sep. 28, 2011, 12:21 PM), http://www.lukeisback.com/?p=18285.

(79.) Michael Whiteacre (mrwhiteacre), TWITTER (Sept. 28, 2011).

(80.) Richard Abowitz, The Person Behind the Porn Wikileaks Website, THE DAILY BEAST (Mar. 31, 2011, 9:59 PM), http://www.thedailybeast.com/articles/2011/04/01/porn-wikileaks -The-Person-Behind-the-Website-Scaring-Porn-Stars.html.

(81.) E-mail from Monica Foster, Adult Film Performer, to Brian Chase (Aug. 31, 2011, 3:33 PM) (on file with author).

(82.) Lin, supra note 71.

(83.) P.J. Huffstutter, See No Evil, L.A. TIMES, Jan. 12, 2003, at 12, available athttp:// articles.latimes.com/2003/jan/12/magazine/tm-porn.

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