YQW.

Took a peek around and saw the usual FSC barkers have been busy spinning this since it was filed. The one thing that stood out for me was a paragraph in this article http://www.courthousenews.com/2015/05/07/porn-actor-with-hiv-pins-blame-on-kink-com.htm

“Identifying himself only as John Doe, the plaintiff says he notified Kink.com immediately when he tested HIV-positive in May 2013, but that studio bosses kept his status quiet until shooting wrapped, leaving regulators in the dark and causing a delay that likely resulted in HIV exposures for two performers.”

The reporter quotes Karen Tynan extensively and this paragraph sums up the light the industry wants to cast this lawsuit in. On the flip side the lawsuit claims Kink keeping mum preventing tracking the source of Doe’s infection. I think the wording of the paragraph will gets lots of attention as this plays out.

The courthouse news article attributes but does not directly quote Tynan as a source stating this is frivolous suit that was thrown out the workmans comp arena. Other sites claim the San Francisco health dept. did partner tracing and ruled out all of Doe’s on-set partners as the source.

Neither point out that had Kink followed current policies there is no reasonable expectation that Doe would know the ‘source’ of his infection. This remains true if 5193.1 is adopted and relates to why in Feb. 2011 Jeffrey Douglas was emphatic in educating performers of their right to refuse giving blood samples to the LA county health dept.

When the health dept does partner notifications they are also trying to source the infection to ensure any ongoing risk has been mitigated, if not the health dept goal is to mitigate the risk with testing, diagnosis and treatment referrals. They can not and do not inform patients in Doe’s position of who the culprit was. First it violates patient confidentiality, second patients have the right to refuse which means absent genetic sequencing the health dept doesn’t know the source and if they do we’re back to square one in civil matters.

If you read OSHA policies you’ll notice that if this were reported to them OSHA has a duty to contact all known or available workplace sources; there is no duty on the part of those contacted to provide blood samples.
Those contacted do NOT have a duty to provide blood samples and any of those untested participants could say ‘TY for letting me know there was a HIV incident reported no need to test me I’ve known my status for x years’ as a reason NOT to be tested.

So I expect there will be lots of legal lingo flying back and forth with Kink trying to get the ‘Kink kept mum’ paragraph tossed and Doe trying to keep it in. Will print the other docs to PDF and look forward to BT and others take on the twists & turns on the docket so far.

MHarris: I have never posted a comment arguing whether what happened was or was not rape. My point – and the point that Mike, LurkingReader and others have made – is that its beside the point.

This is not a criminal matter and there are no allegations of rape in the lawsuit. It’s about negligence and fraud. People can argue all day long about whether it was or wasn’t rape, whether it’s a false accusation of rape, whether someone should or should not be prosecuted. Great fodder for discussion.

But it’s a discussion that has nothing to do with this lawsuit because the word rape does not appear in the complaint. That’s all any of us are trying to say.

Happy to send you my bank routing number.

Truth is, this stuff fascinates me. These days, it fascinates me more than porn scenes titillate me. Maybe I’m getting old. Maybe I’ve seen too many cookie cutter porn scenes that just don’t turn me on.

On the legal stuff, for better or for worse, I had the advantage of covering cops and criminal hanky panky when I was a cub reporter on a small town newspaper, and the opportunity to cover several really big, high profile and lengthy civil trials for magazines where I got to dig deep into the machinations of the legal system.

I was also sued five or six times as a co-defendant with big media companies, including one case that actually went to a six week jury trial in federal court. You get an education that isn’t available to the average person watching Law & Order.

None of my responses to MHarris are meant to be personal attacks. Heck, my guess is that there are a fair number of readers who see those posts and think: Hell, yeah! But the posts aren’t the way the rules work, and the legal system plays by a set of rules. I hope MHarris understands I mean no disrespect.

PS – I feel as lucky to have your site to read and respond. It’s been a wonderful resource for a long time. You do good work, my friend.

I am not surprised how many Americans dont really understand the workings of the law, it isnt like they even teach the basics until you go beyond high school (at least they didn’t when I went to high school) and the differences between a criminal and a civil action are monumental. not just in burden of proof but in every aspect a civil action doesnt have to involve a crime though it can. I dont see rape in this case at all because as a criminal act that would be exceedingly difficult to prove, believe me, many girls consulted lawyers about accusing Max Hardcore of rape, and it never happened. And even if Cameron did bring up rape as an allegation that would result in a criminal proceeding and even if someone went to jail for it it doesnt give Cameron any compensation other than maybe the knowledge that someone went to jail for it…This isnt about jail its about money, jail wont pay her medical bills, and I think that is going to be a big part of this case as well.

remember too that many of the complaints are NEGLIGENCE think about it if you are Cameron bay and you are looking to recover money you spent on medical bills, lost wages whatever, why allege rape against some random guy at the shoot that might even be essentially homeless when you can allege that a very wealthy company was aware that what they were doing could result in serious harm to you and that negligence is why you were injured….first rule of civil litigation NEVER EVER sue poor people.

This case is far bigger than the industry A: wants to admit, or B:realizes if Cameron Bay wins, this industry will be changed forever I think.

Lol on Vivid suit, iirc I was saying FEC would be used to push 1A aspects and folks said I had my head in my ass too which reminds me to peek at gov response to 2257 en banc motion was due 8/5/15

The boxing analogy is great and avoids these regs are medical can of worms. The ref, etc are all bound to the boxing commission to ensure performer safety and integrity of the match keeping spectators from crossing the rope lines or less visible line of boxer safety entering/exiting the ring. Ringside doc amounts to compliance with the OSHA first aid stuff listed in suit. FSC presents themselves as a self-regulatory body like the boxing commission but FSC teeth are dentures they remove at first scent of food.

One of our favorite food service stories relates to a QSR franchisee that didn’t train or ensure competence of a contract worker who’s finger tip landed on someone’s plate. That was quickly resolved with two quiet settlements and a promise not to do it again. Along the lines of only in porn is only in food service, the contract worker claimed …healed digit sans tip would cause other employers to question his qualifications 🙂

LurkingReader: I agree entirely that the No list is a form of consent and plays into negligence and fraud. You fraudulently induced me to perform in this shoot by telling me that I wouldn’t have to do anything I didn’t want to do; I could even create a no list of activities I don’t want to engage in and you ignored it. Kink was negligent by not making certain that its directors, set help, and performers understood the no’s before the shoot or for having consequences after (for instance, did any heads roll? Was anyone fined?).

I think Paragraph 33 is different. It is saying that even if she did consent, her mental state was such at the time that she was not to consent to continue, regardless of what she said. While I know people will argue back and say I’m crazy – the same people who said I had my head up my ass when I explained exactly what would happen with the Vivid suit, and it did – but the analogy would be that this is why you have a referee and a ringside doc at a boxing match or a trainer and doc at a football game. It’s their job to tell the athlete that they may have all the heart in the world, but they are in no condition to continue because they are risking permanent and lasting injury.

I think that paragraph 33 is laying the ground work for Bay’s attorneys to argue that even if she continued sucking Xander’s bloody penis, even after questioning whether that was the right thing to do, she was in no condition to make that decision. After all, she exposed herself to all sorts of bad things, even if he did not have HIV.

Any manager at any business outside of porn who made a decision to allow an openly bleeding employee to continue on the job and bleed on other employees just to finish out the shift would be fired in a heart beat, even if no one became ill.

BT

Reading through the case RandomGuy posted a link to there can be no mistake that Consent is at the heart of these cases. I sent Mike a PDF of doc 4-3 which is original complaint, if he hasn’t forwarded it yet send your e-mail to lurkingreader@gmail and I’ll send you a copy & cc you with the rest of the case.

Instead of a NO LIST that one references e-mail communications ‘condom required shoot’ a director forcing the head of a bound & blindfolded performer onto penises of public participants.

Hopefully this analogy won’t open a can of worms but I’m seeing this NO LIST (consent issues) presented w respect to negligence much like a situation where a ER doctor didn’t look at a patient chart before or during the treatment process with an unfavorable outcome. Patient rights and the reasonable expectation that docs look at their chart is much more cut and dry than worker rights and reasonable expectations.

“That’s one individual on one set on one production; you can fix that by paying up and promising it’ll never happen again.”
The defenses I’ve seen so far indicate “promising not to do it again” is the issue because the only promises porn makes is that they will do it again since that’s what the customer wants.

In the post-interview to the July 31, 2013 shoot ….. it is acknowledged that (Cameron Bay) went into “subspace” during the shoot …. Where the Sub lacks the mental capacity to make his or her own decisions. Given … (that) observation … (Cameron Bay) did not have the capacity to consent to the acts that were performed upon her.”

So, why is that dangerous to Kink? Back during the argument over condoms, supporters of the industry made three arguments above and beyond the effectiveness of the current testing program. One is that performers are adults: They know what they’re getting into. Another is that what porn performers agree to do with their bodies is no different than professional athletes who put themselves at risk of serious injury for pay, like boxers and MMA fighters. Finally, using mainstream, they likened porn talent to Hollywood stunt people who do dangerous things for money.

I think those arguments really don’t hold up to the light of day when applied to mainstream porn produced by Vivid, DP, Naughty America or Brazzers. I think they’re especially problematic when you think about what Kink does, or niche content like rosebud videos, where an actress is penetrated so violently that her anus prolaxes.

Here’s why, just because someone is willing to consent to do something for money doesn’t mean it’s legal to do so. There are limits – you or I can’t consent to be shot or stabbed for money, for instance. If you doubt it, any number of performance artists have been prosecuted for pushing the limits of art, including a guy in NYC whose “performance” was to get shot with live ammunition by a revolver. That may not apply to mainstream porn, but if someone really wanted to take Kink or the rosebud producers to task, my guess is that being beaten, cattle-prodded and violated in public by strangers may push the limits of what’s defensible. You can argue the point – and it may be argued in this case.

Second, the mainstream argument. As a former frequent poster on this site who was in the stunt industry often pointed out, the difference between mainstream and porn is that the sex and violence in porn is real – people really are being cattle prodded, penetrated and beaten so hard that they need corrective surgery after. Stunt people wear protective gear; the promise of porn is that there are no nets, not even condoms. Hey, it’s so real, we let HIV positive men perform without condoms and deposit viral loads into other HIV positive men. There are no trained medical professionals on set or ambulances waiting in the wings.

That’s the same for professional sports. There’s no such thing as bare knuckle fighting – even MMA fighters wear some protective gear. There are referees to step in and stop the violence along with doctors on-hand to stop a fight if someone’s health is at stake. If one fighter is badly injured and bleeding profusely, his manager can’t confer with his opponents manager and make the decision to let the beating continue, the way that it is alleged that performers and the director conferred on the Kink set. That’s not just Cameron Bay’s allegation. Xander Corvus described this after the shoot and Peter Ackworth said publicly that things happened on that set that should not have happened.

What’s different about this suit is that it goes right to the heart of consent, and argues that someone in that situation does not have the cognitive ability to give consent for the punishment to continue.

If this case goes to trial, if paragraph 33 becomes an important part of what is litigated at trial, and if Bay prevails, porn is going to really have to think about the content that it films and what it can legally ask talent to consent to perform.

Again, porn seems to exist in its own universe, where the laws of gravity do not apply, so who knows. To me, that seems like a far more dangerous paragraph to the industry than arguments over whether four fingers are fisting. That’s one individual on one set on one production; you can fix that by paying up and promising it’ll never happen again.

The notion of consent for extreme content is a whole different animal.

MHarris: I admire your tenacity and I can tell that you feel strongly about this case. Unfortunately, you’re just wrong on the law –

First, as I and others on this thread have noted, this is personal injury lawsuit rooted in negligence and fraud. The word rape does not appear in the complaint. I haven’t read any of the comments on other sites, but on Mike’s site, the only person throwing around the word rape is you.

With regard to libel, you posted above: “Cameron may be immune from libel accusing rape in the lawsuit but not if she accuses her of rape anywhere else. The AHF will make sure that accusation is made in any number of press conferences, that is not immune from a libel lawsuit. Read between the lines on this, BT.”

Unfortunately, you’re still just completely wrong. A lawsuit is a public issue. As such, reporters, commentators, advocacy organizations, and even people in the streets – like those of us in this thread – are given a lot of leeway to discuss the proceedings and particulars of a lawsuit. Heck, it’s the reason that people try to get their cases sealed – they don’t want us discussing the ugly details.

So, a reporter writing about this case is allowed to write about all the ugly accusations made by Bay and her attorneys, even if they turn out to be 100% unproved in court, without fear of a lawsuit. They’re immune. I won’t bore you with all the details, but I have personal experience in this. Years ago, I was sued by an individual who had been accused of some pretty nasty things in a civil suit (just like this) and won because I wrote about the case – his theory was that since he won the case, I was libeling him by writing about the accusations. The case was tossed in a heartbeat because we showed in our response to the lawsuit that everything I had been written was part of the public record. I was just reporting on the facts of the case.

Similarly, let’s say Cameron gives a press conference, you’re in the audience, and you see it as your opportunity to get her to talk about rape. So you ask her the following question: Cameron, what you describe in the lawsuit sounds like forcible rape and you didn’t go to the cops. Is that because you’re lying? She would be perfectly within her rights to say, That’s not what we say in the complaint, but it sure felt like rape at the time.

An editorial writer or commentator would be within their rights to write, “If Cameron Bay’s allegations are true, this illustrates everything that’s wrong with pornography today. She describes being tied up, beaten so badly that one of her breasts required corrective surgery, being penetrated against her will by a room full of strangers, and “fisted” even though she wrote on her “no list” before the shoot that she didn’t want to be fisted. I don’t know about you, but that sounds like rape to me. It’s an ugly industry.” That’s because opinion writers are given wide latitude as long as they don’t make up facts.

Which brings us to AHF. Under the laws around public debate, AHF probably can’t get in front of a microphone and say: “Cameron Bay was raped on a Kink.com set” and leaves it at that. Since rape is not part of this lawsuit, I have no idea why they would say that, but you seem to think that’s their motivation. So, in that example, I’d agree with you. It’s probably a step too far.

However, if AHF gets in front of a microphone and says something like, “You may be aware of a lawsuit filed by Cameron Bay against Kink. Like her, we believe they dealt with her in a negligent and fraudulent way, and we believe she contracted HIV on that set. That’s the reason we advocate for condoms. But its worse than that. If you read her allegations, in our opinion, they fit the definition of rape in California, because too many things happened against her will that day, according to the complaint.” …. they would be completely within their First Amendment rights, assuming that her allegations fit the definition of rape in California. They could even say, “if her allegations are true, it’s like she was raped on that set because things happened against her will.”

I have not read any posting about this case on any other site, so I have no idea what supporters of Kink or the industry are writing about this case or Bay and her attorneys. What I do know is what’s been written on this site. The irony is that the commentary that comes closest to fitting the legal definition of libel are the things you’ve written about Bay and her attorneys, alleging as if you have insider knowledge that the description of what happened on the set is made up; that your gut tells you that it didn’t happen; that she is either lying and her attorney knows it, or the attorney is incompetent or criminal charges would’ve been filed….” Etc. What covers you from a suit is the fact that folks involved in this case probably have bigger fish to fry and that you’re commenting on a public issue ….. the same thing that covers Bay, AHF and reporters covers you.

Long story short, my friend, there are no lines to read between. Neither Cameron Bay nor her attorneys allege rape. If AHF comments publicly on the lawsuit and keeps its comments to the facts of the lawsuit, they can’t be sued for libel. Nor can reporters or commentators. That’s just the way the law works.

It ain’t a rape case.