Videotape, Sex and Danger

Muireann Quigley has pointed me in the direction of this story, concerning the risks of HIV faced by those working in the porn industry.

An Aids activist group has filed a workplace safety complaint against Larry Flynt, accusing the porn king of creating an unsafe environment for his stable of sex stars by not requiring they use condoms.

To illustrate its point, the Aids Health Foundation also delivered 100 DVDS of hardcore Flynt films to the state Division of Occupational Safety and Health’s Los Angeles office. A single scene in one of the films showed a performer using a condom, said AHF spokesman Ged Kenslea.

The films, most with innuendo-laden names, “clearly demonstrate workplace activities highly likely to spread blood-borne pathogens in the workplace,” the complaint says. It urges the state agency to order the use of condoms on film sets.

Questions about dangerous pastimes are not far from a good deal of bioethical debate, not least because something like the harm principle seems generally to be taken as read by most commentators.  And we might wonder whether attempting to sue people like Flint is a kind of violation of the harm principle, since the motivation would – at least on one interpretation – be that the AHF is trying to save the performers from themselves.

But there’s more to it than that. Even if it’s OK for people to put themselves in danger and paternalistic to intervene, and even if we accept (perhaps a little lazily) the idea that paternalism is always wrong, does it follow that it’s OK for others to ask them to put themselves in danger?  We could imagine the pornstars in question thinking along these lines: that they might, in theory, to choose to have all kinds of sex with all kinds of people, but the question of whether or not to use a condom would be one for them to answer; but that the expectation that they don’t use a barrier when having “professional” sex is slightly different, because they don’t have the same freedom of choice in this situation – either they go unprotected, or they don’t work.

Of course, the easy riposte to this is that, if they don’t like the conditions, they should work somewhere else.  But this riposte can be parried by drawing a parallel with work in other potentially hazardous fields.  By analogy, if the smoking ban is justified, it is so by means of appeals to the welfare of – say – barstaff; and it’s unreasonable to expect barstaff to quit their job simply in order to maintain a putative smoker’s right to pollute the environment (especially when it’s likely that other bars would be just as smoky).  By analogy, the porn industry would seem to be one in which there isn’t alternative work of a similar nature available.

Moreover, just as barwork is frequently a job of last resort – the sort of thing you do when there’s nothing better available – we might think the same of porn.  For whatever reason, pornstars may be simply unable to jack it in and do something else instead.  So maybe a bit of paternalism would be in order.

But this assumes that those who work in the sex industry are de facto vulnerable, and unable to control the circumstances in which they work.  That may be true in some cases – maybe many – but it’s not true in all cases.  At least some – and maybe many – porn performers are likely to be perfectly in control of their careers.  But they could still reasonably expect a certain guarantee of safety while – ahem – on the job, even if they are also in a position to be able to stop doing it.  Doing something voluntarily doesn’t mean having to put up with everything.

And there’s another thing: were there to be legislation enforcing the use of condoms on set, and were the (comparatively) mainstream porn industry to conform, that’d still leave a vast underground at the amateur end of the market – and at the grubbier end, where the risks of exploitation are likely to be much higher, and where the performers are less able to take control of what they do and what’s done to them.  In other words, legislation would prevent those who’re in the best position in the industry from doing a job that they presumably find acceptable, while doing nothing to protect those who are much more vulnerable.

Moreover, the pornographer would seem to have another defence against the passive smoking analogy available.  The argument here may go along the lines that you can have a bar without smoke; smoking therefore isn’t essential to the industry, and banning it for the sake of the staff is defensible.  But, the argument may go, porn is different: what you get in a porn film is essential to the product, and banning unsafe sex is not the same as banning unsafe second-hand smoke.  Insisting on condom use wouldn’t be like taking the smoke from a bar – it’d be more like taking the beer.  Thus

Larry Flynt Productions President Michael Klein indicated that [condom use] is an unreasonable demand, adding porn audiences don’t want to watch people using condoms.

By the same reasoning, we could say that porn audiences also don’t want to watch simulated sex.  I’m willing to believe Klein on this: if anyone is going to have an insight into what sells in this market, he will.

Moreover – and given that at least some porn stars are not the exploited victims of popular myth – it does seem reasonable to suppose that performers will have at least some idea of the dangers of the job that they’re doing.  It’s hard to believe that HIV would come as a surprise to many people in the world today.

Yet the question remains about the pornographer’s responsibilities to his cast.  Does he have an obligation to fire an HIV+ performer?  Would that perhaps just force the to hide their infection?  If a bankable porn star was HIV+, and another offered still to perform with him or her – perhaps in return for an elevated fee – would it be permissible to allow the performance to go ahead?  Or would there be a dirty hands problem?  If the performance was vetoed, the performers might still decide to go and make a film for themselves if they thought it saleable; that being the case, why shouldn’t he be involved in the project?  (If you think he shouldn’t be involved because of the moral status of all porn, that’s fair enough – but it’s an answer to a different question – one that concerns porn in abstracto, rather than this problem of HIV.)

Do pornographers have an obligation to pay for insurance for their performers?  Again, it’s quite possible that at least some of the performances may happen anyway without the involvement of a studio – so it might be seen as unfair to clobber the studio financially.  Again, this isn’t incompatible with having wider objections to porn – you can disapprove of what someone does, but still accept that there are better or worse ways to go about it; and – if we’re playing the harm principle game – your disapproval mightn’t count for all that much after all.

It turns out that a mildly diverting story about porn actually has all kinds of interesting questions bubbling away under the surface… not the least of which has to do with Muireann’s interest in pornography…

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