Unexplained Discrepancies: The Implementation of the LA Safer Sex in the Adult Film Industry Ordinance

"we're gonna need a bigger packet..."

I've previously blogged on the hard-line approach of the City of LA to condomless pornography.  They took the extraordinary step of passing the Los Angeles Safer Sex in the Adult Film Industry Act (Ordinance) which you can read here.   It requires any anal or vaginal sex to include the use of condoms.  The Ordinance does not (helpfully) define 'vaginal or anal sex' and thus one could reasonably conclude that it is not merely restricted to a penis.  What of a dildo?  A finger? A fist? Should an esteemed lady of the adult porn film scene be filmed bobbing up and down on a LA City Police cone, is she likely to find herself in bother with some newly appointed 'condom cop'?  Confusingly (someone needs sending to drafting school), a definition is offered of an 'adult film' adn that makes it quite clear that anything can be included:

(1) An "adult film" is defined as any film, video, multimedia or other representation of sexual intercourse in which performers actually engage in oral, vaginal, or anal penetration, including but not limited to penetration by a penis, finger, or inanimate object; oral contact with the anus or genitals of another performer; and/or any other activity that may result in the transmission of blood and/or any other potentially infectious materials as defined in California Code of Regulations, Title 8, Section 5193(b).

Our hypothetical cone is indeed included.

Having passed this ordinance, city officials - as the San Francisco Chronicle reported this week - were then tasked with making the whole thing work.  They've now published a report which you can read in full here.  The report is merely a set of recommendations so it's now for the city mayor to decide whether to follow them (and whether the city can find the dollars to fund the whole thing).

If you search for the full report, you'll probably come to this link - which you'll note defines on page two anal or vaginal sex as penetrative with a penis, and notes that this is the language of the ordinance.  It isn't as I note above.

A clanger has been dropped you might conclude; some calamitous mistake occurred?  Well, move over to the LA office and search the official records and you are presented with a similar report but with some significant differences.  The incorrect assertion about the law has vanished, possibly suggesting that city officials thought the law was more narrowly drafted than it is.  Something rather interesting has occurred here - and I've not seen a single report that notes or explains this discrepancy between the two versions.  An explanation from city officials would surely draw the enthusiastic attentiveness of many who will be affected by this law.

The report makes a number of recommendations, and here are those listed in the LA County website version (which I'm taking as the 'final' 'official' version):

1. Revise the Film Permit Application Section (5) of the Ordinance requires the City to add the following language to all adult film permits: "If this production is an adult film, Permittee must abide by all applicable workplace health and safety regulations, including California Code of Regulations Title 8, Section 5193, which mandates barrier protection, including condoms, to shield performers from contact with blood or other potentially infectious material during the production of films."

2. Require Licensed Medical Inspections Issue a Request for Proposals (RFP) seeking to contract with a licensed medical professional to conduct the periodic inspections of adult film productions involving "Activities Carrying Risk  of Transmission of Blood or Infectious Materials." If this recommendation is adopted, more information would need to be gathered to determine City enforcement parameters and the CAO should be directed to report back to the Mayor and Council within 90 days with a draft RFP for further action.


3. Contract with the Los Angeles County Department of Public Health If voters in Los Angeles County approve in the Statewide General Election scheduled for November 6,2012, the measure (County Measure) to require adult film producers to obtain a health permit as a condition of producing a film that involves non-simulated sexual intercourse, then the City should adopt the County Measure and put a measure on the Citywide primary election in March of 2013 to reconcile the Ordinance in LAMC Section 12.22.1 with the County Measure to rely exclusively on the County health permit requirements and inspections to ensure the safety of performers in the AFI from the risk of transmission of bloodbome pathogens. If this recommendation is adopted, the City Attorney should be requested to report back with an amending Ordinance to reconcile LAMC Section 12.22.1 with the County Measure. 

4. Develop a Fee Structure Direct the CAO to develop a fee structure to contract for the services identified in Recommendations 2 and/or 3 above, and direct the CAO to report back to the Mayor and Council within 90 days with a draft fee proposal for adult film inspections.

Media sites are repeating an assertion in the SF Chronicle that quotes a reference in the report to a study by the Los Angeles Fire Department indicates that more than 100 condom cops might be needed to adequately enforce the law, at a cost of $1.7 million or more a year.

My reading of the report is less clear.  Any figure is dependant upon what options the city chooses, and also varies dependant upon the rate at which licenses are set (and the number then issued).  There is also a degree of guess work about those films which currently fall through the licensing regime and thus would contribute towards the need for policing to stop such films.  The report makes clear this extends to 'student films' in the largest category - Miscellaneous.  

The films don't need to be for profit and so it's quite conceivable that the new 'condom police' could be sweeping into the homes of couples performing on live chat/broadcast sites or a couple of college guys who uploaded a video of some penetrative hazing.   Don't forget, penetration with a police cone could count - it doesn't need to be a penis but it does make reference to 'sexual intercourse', so perhaps our College jocks are safe for now.  If the English CPS were involved, I'd be less certain.

So, we have a crazy law, an intense policing regime and a State that is already financially broke.  This shambles still has some way to go.

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