@BT

I’m not sure OSHA was ever mentioned in the lawsuits either. Reading this ruling stood out as a ‘oh wow’ got to show this to BT for his take because I knew you read the lawsuit & so many of the allegations in the suit have already stood up against the scrutiny of a separate process.The other part was the vivid suit you followed so closely used as a rationale to defeat the same 1A defense in this decision.

Really I didn’t mean to open Pandora’s box 🙂

I don’t think the she’s making it up crowd realized what a can of worms they were opening. Consent wasn’t presented straight up as an issue in the lawsuit but it’s gonna be huge. I think the she’s full of shit four/five finger Lorelei didn’t rape her arguments evolved into Peter at the mercy of his staff.

I’d have to reread the original lawsuit and don’t have time to right now, but my memory is that it wasn’t built on the fact that OSHA had fined Kink. It was built on the fact that Bay was severely injured during the shoot – hospitalized because of injuries to her breasts, a bloody penis shoved in her mouth, she was fisted when she said no, and she contracted HIV. OSHA is icing on the cake and helps her prove her case, but its not her case. Her injuries are her case.

@BT

Kink filed for a reconderation in June, as of Nov (most recent public info) it’s still in the works. Kink needs the reconderation decision to appeal this thru the civil court process.

This appeal process will delay the two lawsuits. Anytime a company goes for a reconsideration it’s because they have a lot riding on the outcome. For kink it’s not just the lawsuits it’s their at bat to try winning the were too unique to be regulated game.

@BT

Ty for page that helps. They aren’t condidering fisting the as a violation of her limits there.

It is the Penalty section H on whether or not the employers engineering controls were followed. They were not.

If the limit of no fisting were followed there would have been no exposure to OPIM (fecal matter). OSHA picked that box because it didn’t matter if she said yes or no. If she said yes and the fist wasn’t covered it was still an exposure.

If she said no and they followed it no exposure would have occurred. If she said yes and a barrier was used no exposure. The employer form would have been an effective means to show engineering controls were in place and followed. It showed the opposite.

If Bay is designator N it definitely helps in her lawsuit. Haven’t checked to see if Kink appealed this yet but they’re gonna have a hard time stepping out of the corner they’re painted into.

@Ivy
It already reached the civil courts, now the question is how will it play out?

“Then what role can OSHA play in improving the industry? Ok so the way I think about it, there should always be checks and balances in the system. ”

First was recognizing the industry at all. In many countries the idea that porn would be regulated just like any other industry is ludicrous. The effects of Freeman are still making ripples in the pond. He wasn’t guilty of a crime, he was employing workers. employer/worker CB (check/balance)

The IRS has made headaches for the industry but they’re limited to determining how much tax is due on the AGI. Gross income is reduced by allowable deductions aka business expenses. The employer deducts wages and taxes are paid by the worker. Another check and balance giving them each separate rights.

Taxes fund worker safety oversight which helps keeps employers honest and workers safer. If a day comes when prostitution is legal OSHA’s role might be similar to what it is for magazine vendors or door to door sales workers. In other words not much because they’re geared for brick/mortar workplaces with ten or more employees so they wouldn’t even look at prostitution outside a bordello unless there are more than ten workers.

AHF is a check and balance to the porn industry. All the checks/balances are interdependent vs co-dependent.

@Ivy
It already reached the civil courts, now the question is how will it play out?

“Then what role can OSHA play in improving the industry? Ok so the way I think about it, there should always be checks and balances in the system. ”

First was recognizing the industry at all. In many countries the idea that porn would be regulated just like any other industry is ludicrous. The effects of Freeman are still making ripples in the pond. He wasn’t guilty of a crime, he was employing workers. employer/worker CB (check/balance)

The IRS has made headaches for the industry but they’re limited to determining how much tax is due on the AGI. Gross income is reduced by allowable deductions aka business expenses. The employer deducts wages and taxes are paid by the worker. Another check and balance giving them each separate rights.

Taxes fund worker safety oversight which helps keeps employers honest and workers safer. If a day comes when prostitution is legal OSHA’s role might be similar to what it is for magazine vendors or door to door sales workers. In other words not much because OSHA is geared for brick/mortar workplaces with ten or more employees so they wouldn’t even look at prostitution outside a bordello unless there are more than ten workers.

AHF is a check and balance to the porn industry. All the checks/balances are interdependent vs co-dependent. We’re all just cogs on a wheel.

Lurking – if Designator N is Cameron Bay, the OSHA ruling found that she had said no fisting and that based on the evidence, which I assume means they watched the film, fisting occurred. See pages 36 and 37.

“To the extent that the limits specified on this form were work practices which would assist the employee in eliminating or minimizing exposure to BBP, the limits were not followed. Although Designator N did not agree to anal fisting, this in fact appears to have occurred during the filming.”

Now, whether Designator N is or isn’t Bay, it helps her in a lawsuit. If it is Bay, Kink produced the form for OSHA as a way of saying, hey, we have controls in place so that nothing happens that hasn’t been agreed to. Bay said no anal fisting, and, OSHA concluded on the basis of what it saw that, well, anal fisting happened. If it comes down to a pissing contest about whether four fingers or the whole hand constitutes fisting (which is what the director concluded on the set), Kink is potentially, well, fisted.

If it isn’t Bay, and if it is admitted into court, then, it is an example of how the no wishes of other performers were ignored once the cameras rolled – sure, we give you a no list, but we don’t care.

Either way, if admitted into evidence as part of the case, it demonstrates a lack of control on Kink shoots that is helpful to Bay.

Not saying she wins or anything like that. Only that if your entire argument rests on convincing a jury that no didn’t mean no because the director didn’t shove a thumb up Bay’s butt or in her vagina, that’s not a very convincing defense on that part.

@BT

Was trying to say Fisting isn’t a once & for all fact. IMO its relevance relates to consent and for the purposes of OSHA it was a checkbox on a form Kink created and provided in their efforts to ensure worker safety.

“Now, she does not have to prove that Kink pretty regularly operates an unsafe workplace – in other words, she doesn’t necessarily need the OSHA findings to prove her case. All she has to prove is that particular shoot was unsafe and irresponsible. ”

You’re right neither lawsuit needs the OSHA findings to prove the set they worked on was unsafe and they will argue that OSHA findings against kink establish a pattern of behavior. This is where I think Kink messed up with the disappearing OSHA inspection reports. Four became one. One finding doesn’t establish a pattern but four does. Now kink painted themselves into a different corner with the arguments they used to combine four distinct inspections into one. I don’t have a dog in this fight so I let the FOIA requests go. Doesn’t mean they went away or won’t come back to haunt OSHA which is very bad for porn if OSHA gets put under a microscope for their policy adherence. Which they are.

LurkingReader – Of course, there is a long way to go before the fat lady sings. I think you’re kind of mixing apples and oranges, when you write that OSHA plays by different rules, etc. Let me explain – and part of the assumption is that the Cameron Bay Public Disgrace shoot is the Public Disgrace shoot referred to in the OSHA filings. But, if not, it doesn’t really matter. Here’s why OSHA is potentially important to the Cameron Bay lawsuit.

At heart, the Bay lawsuit is a personal injury suit. There’s been all kinds of wild statements about, well, if she was raped she should have filed a criminal complaint, if she has HIV she got it from her boyfriend, etc. None of that matter in the context of what is alleged in the suit. In her suit, she is saying that she suffered preventable injuries on the Public Disgrace suit for a variety of reasons, but especially because Kink was not operating a safe workplace – all of the nitty gritty details, like not following her no list, a bloody penis being shoved in her mouth, no one really being in charge of the shoot go to the idea of an unsafe workplace.

Now, she does not have to prove that Kink pretty regularly operates an unsafe workplace – in other words, she doesn’t necessarily need the OSHA findings to prove her case. All she has to prove is that particular shoot was unsafe and irresponsible. I don’t mean to minimize her challenge when I write – all she has to prove – it will be momentous to get there. But, if she gets there, that’s enough. Indeed, Kink could have an exemplary workplace safety record and still be at fault if she can prove they were negligent on that one shoot.

Similarly, Kink will argue, if they have not already, that any findings from OSHA are completely irrelevant to this case (unless the OSHA findings specifically refer to that shoot) because this shoot is all that matters.

When the shooting starts, will not argue that OSHA found against Kink and therefore she’s entitled to civil damages. What she will argue is that OSHA findings against Kink establish a pattern of behavior – this is the way this company does business. She’ll then go on to try to prove her case regarding her specific case.

If the Public Disgrace shoot in the OSHA documents is in fact the Cameron Bay suit, it establishes that another agency investigated allegations and found that it was an unsafe shoot. In particular, it found that the no list was not followed. If it’s another Public Disgrace shoot and is allowed in evidence, that potentially helps Bay because it demonstrates that in other instances Kink had performers fill out no sheets, looking like a model citizen, and then ignored them in the heat of the battle.

Will OSHA in and of itself prove Cameron Bay’s case? Of course, not. It may not even be admitted into evidence. But, if it is admitted into evidence it will provide several big bricks in the foundation that her lawyers will try to build.

To the larger porn industry, to me the potential danger is OSHA’s language about condoms being needed to keep semen and other bodily fluids out of the eyes and noses of performers because those are other potential gateways for infection – slight exaggeration, but doesn’t just about every facial cum shot ever filmed involve a girl wiping semen away from her eyes? And, what about squirting?

Porn always seems to get a pass, so I’m not suggesting that cum police are going to crack down. I’m just saying that if I were the industry, this would worry me because someone could crack down.

@lurkingreader I wanted to focus on this sentence you wrote:

“none of the lawsuit claims has been established as fact by the civil courts. ”

Ok. So, let’s just assume that none of this ever reaches civil courts. Let’s assume that all of this is settled quietly and all the dust bunnies are under the rug.
Then what role can OSHA play in improving the industry? Ok so the way I think about it, there should always be checks and balances in the system. (In an ideal world, there should be. But money talks!)
And I’m not even saying that that all types of sex work should be legalized because I don’t think we are there yet. I haven’t read too much about Amsterdam but what little I have read, it seemed to me that there was a broader push for workers rights, but even then that can be taken with a grain of salt, because what does that even really mean? As in, what real world function does it provide in Amsterdam to be a hooker, and to have “broader” protections because the system is legal?
Now what is really, really interesting to me, is that escorting is legal in Australia. I have followed an anonymous escort blog from Australia, and it was very, very surprising to me that she could go to the cops when she was ripped off, and shocker of all shockers, they didn’t blame her or make her feel like shit, her complaint was taken just as seriously as any other random crime.

Ok, and to bring it back into focus into the US and OSHA. Ok so that’s one set of “checks and balances”. It appears the porn industry hates Weinstein and the AIDS Healthcare foundation, but let’s be freaking real here, they ARE a check and balance in the system whether people freaking like it or not.
In theory we should also add APAC and the FSC as part of the system of the checks and balances, but I’m sure all of us readers at Mike’s blog know that is a laughable thought. Moving on….
The industry is an ecosystem, right? Mainly people in power, have a vested interest in NOT having a checks and balanced system, because LOL that would just f it all up for those wearing the big hats. Even performer turned company owner has a vested interest in NOT changing the status quo. The system works for them, just the way it is, why would they want it to change?

But when there are serious issues, as we CLEARLY can see that happened in 2015, there has to be a way for these serious issues to be addressed. For what it’s worth, though there is a theoretical check and balance in place, it’s obviously not enough.