Proposition 60, Pornography, and Sex Work

I’ve debated for a long time whether this is something that I wanted to talk about in public writing; I have a lot of thoughts about ethics and sex work, but generally keep them close to the vest. Given that this concerns a health and public policy issue, I thought it appropriate to post my first article here at a Philosopher’s Take on this subject.

In California, one of the issues coming up on the ballot this November is “the California Safer Sex in the Adult Film Industry Act,” or Prop 60. I’ll get to my opinion on the act in a bit, but first, a summary of the state of play on Prop 60. The voter summary for Prop 60 reads as follows:

Requires performers in adult films to use condoms during filming of sexual intercourse.

Requires producers of adult films to pay for performer vaccinations, testing, and medical examinations related to sexual transmitted infections.

Requires producers of adult films to obtain state health license, and to post condom requirement at film sites.

Imposes liability on producers for violations, on certain distributors, on performers if they have a financial interest in the film involved, and on talent agents who knowingly refer performers to noncomplying producers.

Permits state, performers, or any state resident to enforce violations.

The initiative was put forward and is largely being pushed by the AIDS Health Foundation, under the leadership of president Michael Weinstein. It is being opposed, for various reasons, by the adult industry, free speech groups, and (most interestingly from a political standpoint) the Democratic Party.

The stock arguments for and against the bill are fairly straightforward. Proponents of the law suggest that the condom use reduces performer exposure to sexually transmitted infections, and “have health implications for SEM [sexually explicit material] viewers.” Opponents suggest that the legislation will be ineffective and make the adult entertainment industry more dangerous, driving porn production in California underground (or out of state) and price out compliant, above board competitors. They also note it may violate First Amendment law.

This isn’t cable news, and so I’m not required to pretend that there’s parity in these positions. The Columbia study that the AIDS Health Foundation cites in the article focuses on men having sex with men and has a pretty limited scope; it is an interesting thesis, that watching porn where performers use condoms increases the likelihood that the viewer will use a condom, but that thesis requires a lot more evidence than is currently available. Similarly, so far as I can tell, there is little evidence to suggest that the enforcement of the law will be effective; the statements from performers in adult entertainment note that there are already issues with the compliance of some pornography producers (especially smaller producers who do internet-based content) and these regulations would actually just penalize producers who already meet OSHA requirements for getting their employees tested, improving the market position of non-compliant, sketchy producers who are not going to carry the overhead cost.

I’m not sure how the legal argument plays out as far as First Amendment material; that’s not my area of expertise, and the arguments on both sides are kind of funky to me.

Similarly, I don’t feel like I can offer an independent opinion on the market behaviors of adult entertainment. That said, market experts (including performers and producers) seem to agree with the anti-Prop 60 case, and there seem to be no serious experts on the other side of the issue.

What I do want to add is a few notes on this issue for those looking from outside of the industry, and highlight some of the complexities and considerations.

Sex is an activity with varied levels of risk.

Adult entertainment is a difficult issue to talk about regulating for a few reasons; the most prominent is that any and all expressions of sexuality represented in pornography are (to some extent) subversive to mainstream cultural values, insofar as those values are at least explicitly still puritanical about sexuality. Even amongst sex educators, the notion that sex between any partners is to be considered a public health risk (and, practically, treated as such) is still dominant. There’s a kernel of truth to that, insofar as sexual encounters have a non-zero possibility of transmitting some sort of infection; of course, “non-zero risk” is a hedging term, because so much activity has a non-zero risk without such risk being something that matters much.

Not all sexual encounters are equal with respect to risk; in the case of the adult industry, especially amongst experienced sex workers, the circumstances are actually relatively low risk. Performers, especially those who contract regularly with major production and distribution companies, are regularly tested. Because we are dealing with a mostly-closed community of regularly tested individuals conversant in safer sex practices in their personal and professional lives, we’re actually talking about fairly low risk sex. (Regular testing, knowledgeability about prevention, etc. are all well known to reduce risk.)

There’s a popular perception that because sex workers have more sex, they must inherently be at a much higher risk of spreading disease. But this is far from obvious. Those familiar with best standards and practices both in the adult industry and sex work generally understand the significance of risk reduction, including the use of medical prevention methods like PreP, an issue where the AIDS Health Foundation has a not-so-great record. A low-risk activity that one engages in on a regular basis is not obviously worse than a middle-to-high-risk activity that one engages in rarely; for example, driving your car on a daily basis is not obviously worse than SCUBA diving with sharks.

(It is also noteworthy that the AIDS Health Foundation material neglects this distinction by conflating risks associated with sex in pornography with perceived high risk behaviors, particularly men having sex with men.)

Pornography, and art generally, is not expected to be educational.

In artistic ethics, there is an important distinction between the various social obligations a given artist has in the production of their work, and the corresponding right they have to free and honest expression. (There are those who will deny that adult entertainment, including pornography, is a form of artistic expression; I’m going to bracket that, though I think pornography is pretty obviously a form of art, especially to anyone who knows about the history, aesthetics, and technical elements.)

It may well be that the highest standards of ethical obligation for adult entertainment include the depiction of best standards and practices regarding safe sex, consent, etc. Certainly, there is something ethically admirable about the depiction of sex that includes (or even emphasizes) consent, safer sex practices, and active consideration of risks. But not all expression needs to aspire to that highest ideal; in fact, there are times when eschewal of that ideal is necessary for a given piece.

(e.g.) In dealing with rape fantasies, for example, eschewal of the single most important element of ethical sexual behavior (obtaining consent) is a necessity; in artistic expression, the expression of fantasy, individuals often depart from depicting the best ethical norms. In other mediums (e.g. television, film, video games, literature, etc.) we recognize this as part of the expression. It seems weird to restrict that in film.

Further, the argument that is advanced suggesting that the adult industry ought to use condoms is the same (ethically and causally) tendentious argument advanced by those who oppose violent representations in Tarantino or Scorsese films. Individuals who act in ways that are irresponsible or unethical, whether by committing acts of violence or engaging in unsafe sex or whatever, are morally responsible for their behavior irrespective of the various cultural influences to which they are exposed; and, inversely, not all instances of producing culturally influential material (whether literature or film or whatever) is obligated to maximize its positive influence on the ethical choices of consumers.

To suppose that film producers have a binding obligation to change the content of their art because of some indirect influence certain elements of that film have on individuals is preposterous, especially when there are explicit sources of moral and cultural education that are supposed to inform how people make choices; there are lots of people who appreciate (e.g.) the ethical dimensions and messaging of Spielberg’s movies, but creating those movies in that way is supererogatory.

This isn’t meant to be a legal argument; just an ethical one. Clearly, though, it ties into the law through the notion of free expression in media and the First Amendment considerations.

Overall, there’s good reason to believe that Proposition 60 is (a) poor public policy, (b) informed by poor social science and public health, and (c) relies on basic misunderstandings of the ethics of sex.

Josh can be found on twitter at @thephilosotroll