Judge Drops Some 'No On 60' Arguments-UPDATE

UPDATE: The week ended, and Judge Frawley's "tentative" Order became the official one with no changes. SACRAMENTO, Calif.—Although few if any of former adult performer Derek Burts' claims of falsehood in the arguments against Prop 60 are valid, Superior Court Judge Timothy Frawley nonetheless tentatively granted part of Burts' Petition for Writ of Mandamus to remove some of that language from the official California Voter Guide. Frawley will release his final ruling by Friday, which may change the report below in significant ways. For one thing, Judge Frawley granted the removal of claims that the proposition, officially titled the California Safer Sex In The Adult Film Industry Act, would actually weaken industry safety standards, even though the Act would allow performers infected with various diseases to nonetheless continue appearing in adult features, thanks to the "safety" of universal condom and other barrier protection use. For example, according to Prop 60, "An adult film producer shall maintain engineering controls and work practice controls sufficient to protect adult film performers from exposure to blood and any other potentially infectious material- sexually transmitted infections ("OPIM-STI"). Engineering controls and work practice controls shall include: (1) Provision of and required use of condoms during the filming of adult films; (2) Provision of condom-safe water-based or silicone-based lubricants to facilitate the use of condoms; and (3) any other reasonable STI prevention engineering controls and work practice controls as required by regulations adopted by the Board through the Administrative Rulemaking process, so long as such engineering controls and work practice controls are reasonably germane to the purposes and intent of this Act. ... Adult film producers shall maintain as strictly confidential, as required by law, any adult film performer's health information acquired by any means." In fact, nothing in Prop 60 requires performers to be tested, and with producers unable to disclose any performer's health/infection status, and no requirement for the performer to disclose that status to potential on-set sex partners, there is nothing to prevent an HIV-positive performer from having sex in a sexually explicit movie or web content as long as a condom and other "work practice controls" are used. Considering that the California adult industry has not had a single on-set transmission of HIV in more than a dozen years, thanks to its current testing regimen, Prop 60 definitely makes performers less safe. Judge Frawley is also allowing the deletion of the estimate that California will lose "tens of millions" of dollars in revenue if the proposition is passed. He bases that on the fact that the measure's official Legislative Analyst, who earlier had said that the "tens of millions of dollars" estimate was likely accurate, has now pulled back that estimate to just "millions of dollars." This betrays a gross ignorance of adult industry revenues, currently estimated to be roughly $5 billion annually, and the fact that adult producers learned long ago—in 1998, to be exact, after the Marc Wallice group of HIV infections—that the porn-viewing public balks at buying content that features condoms, and will seek out material that doesn't have them—at the expense of the California-based adult production industry. One of the things that is believed to have prevented even further deletions from the "No on 60" arguments is the testimony of veteran adult actress/director/producer Chanel Preston, who not only made the judge understand that thanks to the current economic downturn, many performers have been forced to become content producers, and would therefore be subject to Prop 60's "civilian attorney general" provision, allowing them to be sued by ordinary citizens who claim that a particular production does not take the required "barrier" precautions. "[Preston] estimated that 75 percent of the members in the 'Adult Performer Advocacy Committee' produce their own content through webcam shows or by marketing segments of films they've performed in," according to a story on Courthouse News. "There are not enough jobs for performers to make money without producing," she testified. "Actors often use other avenues." Judge Frawley apparently saw the validity of that argument, stating in his tentative opinion that, "Whether the measure will allow a 'special interest group' to profit from the proposition is a matter of opinion, as is the question of whether the measure will give rise to an 'unprecedented' lawsuit bonanza. These are not objectively false or misleading statements." Again, all of the above may change, depending on Judge Frawley's final ruling, which Courthouse News said is expected before week's end.