An Analysis of Potential Liability within the Adult Film Industry Stemming from Industry Practices Related to Sexually Transmitted Infections

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INTRODUCTION

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. …