February 9, 2012

The Legal Issues Engendered by the L.A. Condom Ordinance

amateur hour

In a commentary on Forbes, Alexandre Padilla — an assistant professor of economics at the Metropolitan State College of Denver and a research fellow at Reason Foundation — details some of the legal problems that will arise as a result of Los Angeles’ new condom ordinance. He writes:

Condoms undeniably help lower the risks of HIV infection. But that doesn’t mean the government should mandate condom use in adult movies–and it certainly doesn’t mean that such regulation is a good idea. For one, the adult film industry would have to make every performer an employee to satisfy the California’s Division of Occupational Safety and Health, better known as Cal/OSHA, laws. This would be detrimental: California’s anti-discrimination laws prohibit requiring an HIV test as a condition of employment; therefore the adult film industry’s current testing process, in which every performer is tested for HIV monthly, would be illegal. Nor would adult film producers be allowed to “discriminate” by refusing employment to HIV-positive performers. As a result, untested and HIV-positive performers would be able to work in the industry, raising the risks of HIV outbreaks–particularly since condom breakage or slippage can occur.

Over at the Huffington Post, David Groshoff, law professor and Business Law Center director at Western State University College of Law, writes about the larger implications for the ordinance:

Last month the L.A. City Attorney, Carmen A. Trutanich, sued Weinstein and four others, stating (paragraph 14) that the proposed ordinance is unconstitutional and (paragraph 17) that attempting to obtain this judgment now, rather than post-election, “is necessary to avoid the needless and wasteful expenditure of public resources made in connection with a measure which the voters have no power to adopt.” The cost could be more than $4 million of taxpayer money in a cash-strapped city and state.

In its editorial this week supporting Weinstein’s efforts, the Los Angeles Times claimed that this proposed regulation was similar to banning smoking in restaurants to protect workers in the service industry. But smoking or inhaling secondary smoke was not the primary condition of the compensation arrangement for those working in restaurants. Here, however, having unprotected sex is the condition of the compensation arrangement. As a result, one would expect the contracting parties to negotiate the risk/reward balance, with barebacking performers receiving significantly greater compensation than safe-sex performers. And assuming that consenting adults are reasonably informed decision makers, people should be left to make their own bodily decisions, free from government interference and “enforcement.”

In this age of [insert adult website name here]tube.com, nearly anyone can be a “producer” of for-profit “adult films” simply by uploading homemade videos and requiring that people pay to view those videos. Weinstein’s initiative could quickly make those people — queer, straight, or anywhere in between — criminals.

Header image by William Wootton.

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