In so much of the mainstream media coverage of the recent outbreak, what is conspicuous by its absence are the voices of performers, who, after all, are the ones in the trenches that ultimately suffer the effects of STDs if they're transmitted in the making of porn. Thankfully, many current and former performers blog, and a number of them have had quite a bit to say about the recent outbreak and what steps the industry should take. They have a variety of positions on what needs to be done, but all represent a far better informed position than I'm hearing from the current crop of public health officials and activists.
Without much further ado:
Renegade Evolution: Porn and Condoms
Nina Hartley's Journal: HIV In The News
Audacia Ray: HIV outbreak in the porn industry
Belladonna on Safer Sex and the Industry
Marie Luv Tells Why She's Quarantined
Monica Foster: [1], [2]
A sanctuary for supporters of sexual free expression and the adult sexual media.
Saturday, June 20, 2009
Thursday, June 18, 2009
The Vampires Strike Back
Evidently, with the gang at County Health at least temporarily sidelined by that inconvenient retraction of earlier false statements issued yesterday, Cal-OSHA, which shares the same "mandatory condoms at any price" approach, has decided to act unilaterally in an attempt to impose their standards through some kind of administrative fiat. They laid the groundwork for this yesterday by playing Elliot Ness at AIM's main Clinic. Read all about it via the L.A. Times:
Health officials inspect clinic that serves porn industry
Tired of waiting for a response from the Adult Industry Medical Healthcare Foundation about a positive HIV test for a performer, state investigators make the surprise visit.
By Kimi Yoshino
June 18, 2009
Tired of waiting for a response from the San Fernando Valley-based health clinic where an adult film actress recently tested positive for HIV, state health and safety investigators Wednesday performed a surprise inspection of the medical offices and this week will issue subpoenas demanding access to patient records.
Since the HIV case was disclosed last week, public health officials and AIDS advocacy groups repeatedly have criticized the Adult Industry Medical Healthcare Foundation for not cooperating fully with county and state authorities and for protecting the industry by withholding the name of the production company that filmed the woman without a current, clean test.
The state also is seeking information about 18 additional HIV-positive cases that the clinic has reported to Los Angeles County health officials since 2004. The county did not investigate those cases and has no information on whether they involved active adult performers or how the transmissions occurred. AIM has said that the latest case involves the first active performer to contract the disease since a 2004 outbreak shut down production for a month.
"We were unaware of all of these cases until recent reports came out," said Dean Fryer, a spokesman for the state Division of Occupational Safety and Health. "That's why we wanted to get into the clinic. We wanted to interview staff that work there. We wanted to look at records. We want to understand this."
The agency was prepared to obtain a court warrant to gain access, but when investigators arrived at the Sherman Oaks facility Wednesday afternoon, clinic officials let them in and cooperated.
"The response was fairly good," said Amy Martin, special counsel to the Division of Occupational Safety and Health. "They allowed our people to do a walk-around. They allowed them to speak to employees. There was no exchange of documents yet. There will be in the future and we'll see how that goes."
Sharon Mitchell, the former porn star who opened the clinic in 1998, could not be reached for comment.
The clinic's attorney, Mark Levinson, said, "It's strange that this happened at this particular moment, but it's their right and we have nothing to hide."
He said he could not comment on requests to turn over documents until he receives the subpoenas.
In statements on the clinic's website, Mitchell repeatedly has maintained that the clinic is following all laws. She has said that the actress and her two sexual partners have been barred from work, pending additional testing. The partners haven't tested positive.
Mitchell has told county officials that the clinic, which was sued for breach of privacy after the 2004 outbreak, is awaiting final, confirmatory test results and legally has up to seven days to report the information.
But state health and safety officials didn't buy that.
"If you're going to err, err on the side of caution," Martin said. "Don't say let's wait another seven additional days and meanwhile, let's go make some more unprotected films. . . . We think they're creating a hazard by sending people into a known unsafe work practice. They're who the industry relies on to stop the people from working."
The industry has long held that its practices are safe. Producers say that no performer is filmed without proof of negative tests, which should be taken every 30 days, according to industry standards.
That is not adequate protection, Martin said, because the disease might not show up in tests for days. The only protection is condom use, she said.
So, other than disrupting clinic operations and attempting to intimidate the entire porn community, the purpose of this fishing expedition would appear to be the beginning of an effort to use whatever flmsy excuse they can to compel the whole industry to do sex the way they tell us or face random inspections (of which there can never be very many because they lack the funds and personnel to properly regulate the thousands of industries already under their jurisdiction) and fines and other administrative penalties where they see opportunities. That's clearly what they were seeking yesterday - opportunities.
As it's already be established, by the admission of our friend Dr. Fielding, that the so-called "undisclosed cases of HIV in the porn community" weren't really in the porn community at all, Cal-OSHA's spokesman Dean Fryer's claim that: "We were unaware of all of these cases until recent reports came out," and that they are the reason "... we wanted to get into the clinic. We wanted to interview staff that work there. We wanted to look at records. We want to understand this" seems pretty flimsy. Those cases, as we know and as County Health now admits, were not industry-related, and the last time I checked, Cal-OSHA didn't have authority to regulate people's behavior in their own bedrooms.
But the real object of their interest is pretty obvious, and directly related to the single HIV case detected on June 4. In the words of Cal-OSHA's chief condom crusader Amy Martin: "If you're going to err, err on the side of caution. Don't say let's wait another seven additional days and meanwhile, let's go make some more unprotected films. . . . We think they're creating a hazard by sending people into a known unsafe work practice. They're who the industry relies on to stop the people from working."
Of course, AIM has already quarantined the tiny group of contacts from the single established HIV case discovered on June 4, and in any event, AIM doesn't "send" anybody anywhere. AIM monitors, reports, traces contacts, makes notifications and recommends action. That's what it was created to do and that is the extent of its abilities.
But somewhere in those records that Cal-OSHA seeks by court order, hoping to override California's medical privacy laws (for the greater good, of course) these officials want to find specific information about the infected performer, and where, when and with whom she worked. This would pave the way for levying fines against the company that shot her wiithout a clean test. Martin and her friends read the papers and know the other cases waved in the wind by Dr. Fielding and his pals are unrelated. That's just a cover for the obvious objective of pinning down a culprit in this affair and making an example, which they will try to expand to include the entire industry.
Anyone doubting that that is the goal should re-read Martin's parting shot:
"The industry has long held that its practices are safe. Producers say that no performer is filmed without proof of negative tests, which should be taken every 30 days, according to industry standards.
That is not adequate protection, Martin said, because the disease might not show up in tests for days. The only protection is condom use, she said."
Cal-OSHA has previously fined a production company for creating a workplace hazard during the events of 2004 and I have no doubt if they turn up what they're looking for, which may or may not be possible from trolling the paperwork of an unspecified number of AIM's clients and whatever other information AIM's contact tracing activities may have generated, that the agency will act against the company in question.
How far they can go beyond that is not Their intention to extend what powers they legitimately enjoy to try and impose universal condom use in porn without the benefit of specific enabling legislation by pursuing sanctions against purported safety regulation violators in an effort to intimidate everyone else into adopting their preferred approach is clear enough from Martin's statement.
This did not happen in 2004, when there were demonstrated workplace HIV transmissions and fines were successfully imposed on producers, so it's pretty doubtful that they'll get what they want, other than somebody's head to hang on their office wall, out of this latest show of force.
The overwhelming majority of producers who have followed AIM's recommendations and never had an HIV incident on any of their sets are quite likely to go on doing what they've been doing, just as they did after 2004.
However, the invasion of AIM's facilities by the inspectors, the attempt to discredit AIM's methods and the disruption of AIM's operations pretty much confirm worst suspicions about the agency's secondary goal of undermining confidence in the existing safeguards, even if no workable replacement yet exists.
Can this blatantly political exercise of state power succeed in making things worse for everybody? To some extent, by compromising AIM's confidential relationships with its clients, it already has. But how far it can really go from there would appear headed for some kind of juridical determination.
There are legal limits to CAl-OSHA's reach, and the standard they wish to force down all our throats having been created for a different industry without consultation with those to be subjected to sweeping new rgulations most likely exceeds the agency's authority.
It looks like we're going to find out.
In the meantime, Amy Martin can pursue her agenda at taxpayer expense to whatever end while the industry continues to do what it has been doing all along: operating as normal under AIM's accepted testing protocols.
The ugly way in which Martin and her gang have conducted their campaign deserves whatever push-back it's going to get, but the end result is unlikely to have much impact on the broader operations of porn producers. Existing laws don't support a single state agency's desire to dictate massive new regulations by administrative fiat, and the laws that will enable them to do so aren't going to be enacted for reasons that have been previously discussed at interminable length.
More showboating, more grandstanding, more strong-arm tactics and no substantive change in anything. That's what Cal-OSHA's latest door-busting at a health care clinic amount to. They should know by now that these things don't go down well around here. Bigger government entities with much more impressive powers at their disposal have been using those same tactics for years in efforts to regulate porn content through criminal prosecution. They get some heads now and then too, but the rest of us go on according to our own best judgment, and I'm betting that these arrogant bureaucrats are going to run into some pretty stiff resistance when they try to prevent us from engaging in our lawful production of adult entertainment.
But I'm sure they'll keep on trying.
Health officials inspect clinic that serves porn industry
Tired of waiting for a response from the Adult Industry Medical Healthcare Foundation about a positive HIV test for a performer, state investigators make the surprise visit.
By Kimi Yoshino
June 18, 2009
Tired of waiting for a response from the San Fernando Valley-based health clinic where an adult film actress recently tested positive for HIV, state health and safety investigators Wednesday performed a surprise inspection of the medical offices and this week will issue subpoenas demanding access to patient records.
Since the HIV case was disclosed last week, public health officials and AIDS advocacy groups repeatedly have criticized the Adult Industry Medical Healthcare Foundation for not cooperating fully with county and state authorities and for protecting the industry by withholding the name of the production company that filmed the woman without a current, clean test.
The state also is seeking information about 18 additional HIV-positive cases that the clinic has reported to Los Angeles County health officials since 2004. The county did not investigate those cases and has no information on whether they involved active adult performers or how the transmissions occurred. AIM has said that the latest case involves the first active performer to contract the disease since a 2004 outbreak shut down production for a month.
"We were unaware of all of these cases until recent reports came out," said Dean Fryer, a spokesman for the state Division of Occupational Safety and Health. "That's why we wanted to get into the clinic. We wanted to interview staff that work there. We wanted to look at records. We want to understand this."
The agency was prepared to obtain a court warrant to gain access, but when investigators arrived at the Sherman Oaks facility Wednesday afternoon, clinic officials let them in and cooperated.
"The response was fairly good," said Amy Martin, special counsel to the Division of Occupational Safety and Health. "They allowed our people to do a walk-around. They allowed them to speak to employees. There was no exchange of documents yet. There will be in the future and we'll see how that goes."
Sharon Mitchell, the former porn star who opened the clinic in 1998, could not be reached for comment.
The clinic's attorney, Mark Levinson, said, "It's strange that this happened at this particular moment, but it's their right and we have nothing to hide."
He said he could not comment on requests to turn over documents until he receives the subpoenas.
In statements on the clinic's website, Mitchell repeatedly has maintained that the clinic is following all laws. She has said that the actress and her two sexual partners have been barred from work, pending additional testing. The partners haven't tested positive.
Mitchell has told county officials that the clinic, which was sued for breach of privacy after the 2004 outbreak, is awaiting final, confirmatory test results and legally has up to seven days to report the information.
But state health and safety officials didn't buy that.
"If you're going to err, err on the side of caution," Martin said. "Don't say let's wait another seven additional days and meanwhile, let's go make some more unprotected films. . . . We think they're creating a hazard by sending people into a known unsafe work practice. They're who the industry relies on to stop the people from working."
The industry has long held that its practices are safe. Producers say that no performer is filmed without proof of negative tests, which should be taken every 30 days, according to industry standards.
That is not adequate protection, Martin said, because the disease might not show up in tests for days. The only protection is condom use, she said.
So, other than disrupting clinic operations and attempting to intimidate the entire porn community, the purpose of this fishing expedition would appear to be the beginning of an effort to use whatever flmsy excuse they can to compel the whole industry to do sex the way they tell us or face random inspections (of which there can never be very many because they lack the funds and personnel to properly regulate the thousands of industries already under their jurisdiction) and fines and other administrative penalties where they see opportunities. That's clearly what they were seeking yesterday - opportunities.
As it's already be established, by the admission of our friend Dr. Fielding, that the so-called "undisclosed cases of HIV in the porn community" weren't really in the porn community at all, Cal-OSHA's spokesman Dean Fryer's claim that: "We were unaware of all of these cases until recent reports came out," and that they are the reason "... we wanted to get into the clinic. We wanted to interview staff that work there. We wanted to look at records. We want to understand this" seems pretty flimsy. Those cases, as we know and as County Health now admits, were not industry-related, and the last time I checked, Cal-OSHA didn't have authority to regulate people's behavior in their own bedrooms.
But the real object of their interest is pretty obvious, and directly related to the single HIV case detected on June 4. In the words of Cal-OSHA's chief condom crusader Amy Martin: "If you're going to err, err on the side of caution. Don't say let's wait another seven additional days and meanwhile, let's go make some more unprotected films. . . . We think they're creating a hazard by sending people into a known unsafe work practice. They're who the industry relies on to stop the people from working."
Of course, AIM has already quarantined the tiny group of contacts from the single established HIV case discovered on June 4, and in any event, AIM doesn't "send" anybody anywhere. AIM monitors, reports, traces contacts, makes notifications and recommends action. That's what it was created to do and that is the extent of its abilities.
But somewhere in those records that Cal-OSHA seeks by court order, hoping to override California's medical privacy laws (for the greater good, of course) these officials want to find specific information about the infected performer, and where, when and with whom she worked. This would pave the way for levying fines against the company that shot her wiithout a clean test. Martin and her friends read the papers and know the other cases waved in the wind by Dr. Fielding and his pals are unrelated. That's just a cover for the obvious objective of pinning down a culprit in this affair and making an example, which they will try to expand to include the entire industry.
Anyone doubting that that is the goal should re-read Martin's parting shot:
"The industry has long held that its practices are safe. Producers say that no performer is filmed without proof of negative tests, which should be taken every 30 days, according to industry standards.
That is not adequate protection, Martin said, because the disease might not show up in tests for days. The only protection is condom use, she said."
Cal-OSHA has previously fined a production company for creating a workplace hazard during the events of 2004 and I have no doubt if they turn up what they're looking for, which may or may not be possible from trolling the paperwork of an unspecified number of AIM's clients and whatever other information AIM's contact tracing activities may have generated, that the agency will act against the company in question.
How far they can go beyond that is not Their intention to extend what powers they legitimately enjoy to try and impose universal condom use in porn without the benefit of specific enabling legislation by pursuing sanctions against purported safety regulation violators in an effort to intimidate everyone else into adopting their preferred approach is clear enough from Martin's statement.
This did not happen in 2004, when there were demonstrated workplace HIV transmissions and fines were successfully imposed on producers, so it's pretty doubtful that they'll get what they want, other than somebody's head to hang on their office wall, out of this latest show of force.
The overwhelming majority of producers who have followed AIM's recommendations and never had an HIV incident on any of their sets are quite likely to go on doing what they've been doing, just as they did after 2004.
However, the invasion of AIM's facilities by the inspectors, the attempt to discredit AIM's methods and the disruption of AIM's operations pretty much confirm worst suspicions about the agency's secondary goal of undermining confidence in the existing safeguards, even if no workable replacement yet exists.
Can this blatantly political exercise of state power succeed in making things worse for everybody? To some extent, by compromising AIM's confidential relationships with its clients, it already has. But how far it can really go from there would appear headed for some kind of juridical determination.
There are legal limits to CAl-OSHA's reach, and the standard they wish to force down all our throats having been created for a different industry without consultation with those to be subjected to sweeping new rgulations most likely exceeds the agency's authority.
It looks like we're going to find out.
In the meantime, Amy Martin can pursue her agenda at taxpayer expense to whatever end while the industry continues to do what it has been doing all along: operating as normal under AIM's accepted testing protocols.
The ugly way in which Martin and her gang have conducted their campaign deserves whatever push-back it's going to get, but the end result is unlikely to have much impact on the broader operations of porn producers. Existing laws don't support a single state agency's desire to dictate massive new regulations by administrative fiat, and the laws that will enable them to do so aren't going to be enacted for reasons that have been previously discussed at interminable length.
More showboating, more grandstanding, more strong-arm tactics and no substantive change in anything. That's what Cal-OSHA's latest door-busting at a health care clinic amount to. They should know by now that these things don't go down well around here. Bigger government entities with much more impressive powers at their disposal have been using those same tactics for years in efforts to regulate porn content through criminal prosecution. They get some heads now and then too, but the rest of us go on according to our own best judgment, and I'm betting that these arrogant bureaucrats are going to run into some pretty stiff resistance when they try to prevent us from engaging in our lawful production of adult entertainment.
But I'm sure they'll keep on trying.
Wednesday, June 17, 2009
And An Extra Helping of Crow for the Good Doctor
I promised to post any new information regarding the single porn HIV case that has been engineered into a minor major news event by a series of sensational reports from Los Angeles health officials over the past week. I also challenged the claim made by said officials that there has been a much larger number of HIV cases in the porn industry than previously disclosed.
Evidently, the county has had some second thoughts regarding previous statements. I'll let today's L.A. Times tell you what they have to say now:
L.A. County backtracks on reports of porn HIV cases
Officials had reported 16 unpublicized cases of HIV-positive performers since a 2004 outbreak. But the county health director now says officials did not know if any of the 16 were performers.
By Kimi Yoshino and Rong-Gong Lin II
June 17, 2009
Los Angeles County public health officials backtracked Tuesday on their statements last week that at least 16 unpublicized cases of HIV in adult film performers had been reported to them since 2004.
Despite their release of data to The Times describing the cases as "adult film performers," the county's top health official acknowledged that the agency does not know whether any of those people were actively working as porn performers at the time of their positive test.
Health officials also corrected upward, from 16 to 18, the total number of new cases reported by the Adult Industry Medical Foundation, a San Fernando Valley-based clinic that serves the porn industry, since a 2004 HIV outbreak and the revelation last week that a female porn performer had tested HIV positive.
County public health officials said they had mislabeled all reports from the AIM clinic as adult performers when, in fact, information about their occupation is unclear. Although the clinic was created primarily to serve the porn industry, it serves other clients.
"We have no information on these individuals," said Dr. Jonathan Fielding, the county's health officer. "All we have is the number from AIM."
Sharon Mitchell, the clinic's co-founder, told The Times this week that none of the HIV cases cited by the county involved active performers.
"Here's the bottom line: We're an HIV testing center," Mitchell said. "We don't just test the adult entertainment industry. We have a lot of people who come who want testing from the general public."
Mitchell said all previously unpublicized cases involved either a non-performer or an aspiring actor or actress who tested positive, then dropped out of the business.
She said the female actress who tested positive for HIV at their clinic earlier this month remains the only case detected in a working performer since 2004. At that time, a male porn star and three actresses with whom he had performed all tested HIV positive. An unrelated transsexual performer also tested HIV positive the same year. The cases shut down production in Southern California's multibillion-dollar porn industry for a month.
Fielding said Tuesday that the county did little investigation of any of the post-2004 cases and have few details about the individuals, their partners or how they may have been infected. Mitchell, whose clinic settled a breach of privacy lawsuit brought by Darren James, the porn star at the center of the 2004 outbreak, said she could not release names or information because of privacy laws.
Fielding said the county lacks sufficient information to delve deeply into the cases and still has received no formal report on the most recent case.
"The system we have and the laws we have do not facilitate the kind of contact tracing and verification that we'd like to see," Fielding said. "AIDS has been treated separately from other STDs."
State laws allow the county to make partner notification for diseases such as chlamydia, gonorrhea and syphilis. In HIV cases, the responsibility for notification rests with the medical clinic or doctor, not the county, Fielding said. Clinic officials said the woman had two recent male sexual partners, who in turn had six additional partners between them. All so far have tested HIV negative, according to the clinic.
Fielding said the rate of sexually transmitted diseases such as chlamydia and gonorrhea among adult performers is high and that any cases of HIV are to be taken seriously.
"Is what's being done better than nothing? Absolutely," Fielding said of the voluntary testing conducted by the porn industry. "Is it what should be done and what is required in today's world of occupational safety? Absolutely not. . . . To have, in 2009, an occupational hazard that's preventable and subjects individuals to life-threatening diseases is outrageous."
Though the indefatigable Dr. Fielding did manage to throw in a parting slam at the current system of protecting the adult talent pool, he had to grudgingly admit that it was "better than nothing," which is what we'd most likely end up with if his desired approach were to prevail. You will note that Fielding no longer claims that AIM failed to report new cases as required. AIM complied with the law in this regard, as it always has.
The bottom line is that his department told a whopper, repeated it several times then, most likely under pressure from their lawyers, had to eat it.
What this says about the credibility of this source regarding other matters I leave to the judgment of readers.
More news as it breaks. I have reason to believe that some of that news may prove even more surprising to critics of the industry.
Evidently, the county has had some second thoughts regarding previous statements. I'll let today's L.A. Times tell you what they have to say now:
L.A. County backtracks on reports of porn HIV cases
Officials had reported 16 unpublicized cases of HIV-positive performers since a 2004 outbreak. But the county health director now says officials did not know if any of the 16 were performers.
By Kimi Yoshino and Rong-Gong Lin II
June 17, 2009
Los Angeles County public health officials backtracked Tuesday on their statements last week that at least 16 unpublicized cases of HIV in adult film performers had been reported to them since 2004.
Despite their release of data to The Times describing the cases as "adult film performers," the county's top health official acknowledged that the agency does not know whether any of those people were actively working as porn performers at the time of their positive test.
Health officials also corrected upward, from 16 to 18, the total number of new cases reported by the Adult Industry Medical Foundation, a San Fernando Valley-based clinic that serves the porn industry, since a 2004 HIV outbreak and the revelation last week that a female porn performer had tested HIV positive.
County public health officials said they had mislabeled all reports from the AIM clinic as adult performers when, in fact, information about their occupation is unclear. Although the clinic was created primarily to serve the porn industry, it serves other clients.
"We have no information on these individuals," said Dr. Jonathan Fielding, the county's health officer. "All we have is the number from AIM."
Sharon Mitchell, the clinic's co-founder, told The Times this week that none of the HIV cases cited by the county involved active performers.
"Here's the bottom line: We're an HIV testing center," Mitchell said. "We don't just test the adult entertainment industry. We have a lot of people who come who want testing from the general public."
Mitchell said all previously unpublicized cases involved either a non-performer or an aspiring actor or actress who tested positive, then dropped out of the business.
She said the female actress who tested positive for HIV at their clinic earlier this month remains the only case detected in a working performer since 2004. At that time, a male porn star and three actresses with whom he had performed all tested HIV positive. An unrelated transsexual performer also tested HIV positive the same year. The cases shut down production in Southern California's multibillion-dollar porn industry for a month.
Fielding said Tuesday that the county did little investigation of any of the post-2004 cases and have few details about the individuals, their partners or how they may have been infected. Mitchell, whose clinic settled a breach of privacy lawsuit brought by Darren James, the porn star at the center of the 2004 outbreak, said she could not release names or information because of privacy laws.
Fielding said the county lacks sufficient information to delve deeply into the cases and still has received no formal report on the most recent case.
"The system we have and the laws we have do not facilitate the kind of contact tracing and verification that we'd like to see," Fielding said. "AIDS has been treated separately from other STDs."
State laws allow the county to make partner notification for diseases such as chlamydia, gonorrhea and syphilis. In HIV cases, the responsibility for notification rests with the medical clinic or doctor, not the county, Fielding said. Clinic officials said the woman had two recent male sexual partners, who in turn had six additional partners between them. All so far have tested HIV negative, according to the clinic.
Fielding said the rate of sexually transmitted diseases such as chlamydia and gonorrhea among adult performers is high and that any cases of HIV are to be taken seriously.
"Is what's being done better than nothing? Absolutely," Fielding said of the voluntary testing conducted by the porn industry. "Is it what should be done and what is required in today's world of occupational safety? Absolutely not. . . . To have, in 2009, an occupational hazard that's preventable and subjects individuals to life-threatening diseases is outrageous."
Though the indefatigable Dr. Fielding did manage to throw in a parting slam at the current system of protecting the adult talent pool, he had to grudgingly admit that it was "better than nothing," which is what we'd most likely end up with if his desired approach were to prevail. You will note that Fielding no longer claims that AIM failed to report new cases as required. AIM complied with the law in this regard, as it always has.
The bottom line is that his department told a whopper, repeated it several times then, most likely under pressure from their lawyers, had to eat it.
What this says about the credibility of this source regarding other matters I leave to the judgment of readers.
More news as it breaks. I have reason to believe that some of that news may prove even more surprising to critics of the industry.
Sunday, June 14, 2009
Latest HIV-in-Porn-Panic: Rumor Control Central Re-Opens for Business
As readers of this blog already know, a female porn performer tested positive for HIV earlier this month at the Los Angeles clinic of the Adult Industry Medical Health Care Foundation (AIM), of which I am chairman of the board emeritus after six terms as a board member, starting with the organization’s formation in 1997. Though I’ve given up blogging as a hobby, the sensationalistic press coverage by local media and irresponsible fear mongering by public officials and anti-porn partisans in the wake of this development cannot go unaddressed.
The current situation has long-term implications for public health and public policy reaching beyond the parochial concerns of the porn industry, those who support it and those who oppose it. The ghoulish glee, complete dishonesty and utter disregard for the potential consequences to actual sex-workers in the attempt to politicize a single, isolated episode with which rad-fems and self-styled porn experts have seized upon this thing is disgraceful and says much more about them than it does about us.
For those implications to be considered rationally, there must first be some clear-sighted recognition of the known facts of this particular case. I’ll try to provide them, and then I’ll offer my perspective on the spin they’ve been given and my own best assessment of the correct course of action for the industry itself and for the greater community of which it is a part. I do not pretend to objectivity in this matter. I don’t have that luxury. I make my living as a pornographer and I am married to an active performer exposed to the same risks as everyone else in the long-term talent pool here, where the majority of porn in sold in America is made.
Where We Are
As many here already know, but some might not, AIM administers testing for HIV and other STIs to the porn performer community, as well as to other sex workers and to population at large. AIM also offers medical treatment, counseling, education and support services to its clients, who include both sex-workers and those uninvolved in sex work in any way.
AIM’s primary function as a community-based, non-profit organization using the most advanced testing methods available is to help maintain a voluntary, performer-supported system of health-status monitoring enabling both performers and producers to know with the greatest possible certainly that working performers are free of HIV and other STIs.
The informal but stringently observed practice here in the Los Angeles area requires monthly testing of all performers in heterosexual pornography to be tested no less than once every 28 days for HIV, Chlamydia and Gonorrhea, every sixty days for Syphilis, and to authorize access to the results of those tests through a computerized data base to both other performers with whom they might be hired to work and to producers who might hire them. The gay side of the industry has opted for barrier protections and does not require performer testing, though some gay performers test on their own initiative.
Since 1997, AIM has performed over a hundred thousand such tests for the thousands of performers who have passed through the porn industry during that time. During those dozen years, a total of five active players on the heterosexual side of the industry have been diagnosed as HIV positive. Four cases were discovered in 2004 and one on June 4 this year.
The events of 2004, which received nationwide media coverage and inspired hearings by a special committee of the state legislature, were very different from the circumstances with which we’re confronted this time and those differences require close scrutiny before any broader conclusions are drawn.
Unfortunately, irresponsible gossip bloggers, a sensationalistic local press and various activists with different agendas have already begun spinning the few facts thus far made public to their own ends, with potentially disastrous consequences. Before that process whirls out of control, let’s have a look at what we actually know so far.
The performer, who was tested for HIV and other STIs on June 4, is a 42-year-old woman who had been working in porn for approximately one month prior to that date. Obviously, all details regarding the identity of this individual are subject to California’s strict medical privacy laws and will not be divulged here.
Like all new performers, she was tested prior to her first scene and received a clean bill of health at that time. During her brief career, she had sex on camera three times preceding June 4 and once, while her June 4 results were still pending, on June 5.
Typically, the PCR-DNA test AIM uses, which can detect HIV viral matter in the bloodstream in as short a time as ten days after infection, yields results in 24 hours. If the results are negative, the performer and/or anyone casting the performer can obtain those results through AIM’s computerized database or from the clinic directly via phone or fax. These disclosures can only be made to third parties with the performer’s written permission.
A confirmatory test, standard procedure in any instance of a positive or inconclusive result, also came back positive on June 6.
The performer and her two primary contacts since June 4 (one a male performer, the other her boyfriend) were immediately notified and quarantined, as were six secondary partners of her two primary contacts.
As of that point, the prospect of contagion from the female performer who tested HIV+ to the rest of the porn talent pool and the surrounding population was contained and remains so now.
Both her primary contacts and their secondary contacts have been tested and are HIV- as of now. They will be retested twice during the coming month and if those tests are also negative, which is highly probable given the nature of the contacts (vaginal intercourse without internal ejaculation and female to female exposure), the quarantine will be lifted and those performers will be able to return to work at no unusual risk to their partners.
In short, this single, isolated case was caught early, notification was given promptly, including to governmental public health agencies mandated by law for notification of new HIV infections, and the infected performer has already been referred for treatment. She’s out of the business. Her few contacts are HIV- and likely to remain so, but will not be working until that is certain.
In no way does this case resemble the situation in 2004, which involved a perfect storm of highly active, long-term members of the performing community, particularly high-risk sex practices (double-anal penetrations and internal ejaculations) on multiple sets and a much larger group of primary and secondary contacts throughout an entire month-long testing cycle. There was clear evidence of performer-to-performer HIV infection in the 2004 episode. There is no such evidence in the present instance and little chance any will emerge.
While it is certainly true that less serious STIs are not uncommon in the industry, they are treatable and we treat them as they arise. We notify partners and treat them too. It would be lovely if the rest of the country were as diligent about these problems as the porn-making community.
This is pretty much where the facts end and where the speculation, fear mongering, politicking and outright lying begin.
The lies started, as they so often do these days, with unsubstantiated reports from remotely involved parties appearing on porn gossip and chat sites. Perhaps the most harmful of these lies was that the infected performer was given a false negative result from her June 4 test by personnel at AIM prior to working on June 5.
This didn’t happen. It couldn’t have because her results did not come back until June 6, as laboratory reports conclusively establish. While AIM’s testing protocols are not foolproof, as nothing wrought by human hands can be, clinic procedures absolutely forbid clinic staff from discussing pending test results with anyone, including those tested, until the lab reports are in. These rules were observed to the letter in this case.
Another false accusation spread around the ‘net claimed that AIM made no attempt to stop the performer from working while her test was still pending. AIM has no legal authority to forcibly prevent anyone from doing anything. However, the importance of voluntary compliance with AIM’s testing and quarantine procedures is well understood throughout the industry and when the positive results were verified, the infected performer’s contacts have honored AIM’s request to refrain from performing until all re-testing is completed. Again, that is how the system works, and it worked quickly and effectively this time as it has in the past.
But vicious as these distortions of reality were, their sources were already well known for their hostility toward AIM’s voluntary harm-reduction approach and knowledgeable insiders viewed them with the skepticism these sources have richly earned by their past behavior.
It wasn’t until the Los Angeles Times, Los Angeles County health officer Dr. Jonathan Fielding, Cal-OSHA spokesman Dean Fryer and Aids Healthcare Foundation President Michael Weinstein got into the act that the bigger and much larger and more ominous falsehoods were put in general circulation.
Fielding is a long-time adversary of AIM’s whose department has a history of harassing and defaming the organization dating to well before the 2004 cases. Fielding’s hirelings have attempted to obtain confidential medical records of AIM’s clients, made threatening calls to AIM clients in efforts to intimidate them into giving information his department has no legal right to collect and publicly accused AIM of “stonewalling” his department’s attempts to investigate STI transmissions in the industry, though he knows as well as we do that California law is extremely specific regarding what we must report to government agencies and what we are forbidden to report to anyone. Members of Fielding’s staff have heckled AIM board members, myself included, from the floor at public forums unrelated to his agency’s mission and Fielding himself has lied to my face in his office in front of two other AIM board members and two members of his own staff regarding his intended recommendations to the state legislature prior to the investigative hearing into the 2004 cases.
But none of Fielding’s cynical machinations sinks to the level of his false assertion, trumpeted by The Times, that AIM has “concealed” an additional 16 HIV infections in the industry since 2004. In fact, eleven of those cases involved male performers in gay porn who are not part of AIM’s client base and who do not test with AIM and four were private citizens not affiliated with porn who sought testing at AIM for personal reasons. As required by law, all HIV infections detected by AIM were reported to Fielding’s department, which is how he comes to know about them, but were not disclosed to AIM’s heterosexual porn industry clients because they did not involve het porn in any way. And yet The Times reported this deliberate and heinous distortion of the truth under the blaring headline: “More Porn HIV Cases Disclosed.” In point of fact, there is no way AIM, Fielding or anyone else can know that the cases involving the gay performers were porn-related, as AIM does not monitor that population. But then again, The Times also characterizes mainstream porn as a $12 billion dollar a year industry, an unsourced figure frequently repeated in mainstream media and universally scorned as a ridiculous exaggeration by industry insiders.
Meanwhile, Cal-OSHA’s Fryer alleges in the same story that “AIM Healthcare has never been cooperative with us and our investigations,” because AIM has obeyed the law and refused to give out client information to agencies not entitled to said information.
And then there’s AHF’s Weinstein, who has characterized the porn industry overall as “a poster-child for heterosexual HIV transmission” and proclaimed that: “This industry screams for regulation. Cal-OSHA needs to require condoms be used in any film. Yesterday.” Weinstein has organized picketing in front of Larry Flynt’s offices to demand that the straight porn industry adopt mandatory condom use and has refused to meet with industry representatives to discuss the reasoning behind the current standards. He is what is colloquially known as a hothead.
All these individuals, and a few converts they’ve made at the margins of the industry, support a truly mad plan by Fielding’s deputy Dr. Peter Kerndt to implement state-legislated regulations requiring condom use throughout the industry that would make it illegal to distribute sexually explicit materials created without the use of condoms, even though Kerndt himself admits that digital post production effects could theoretically render it impossible to determine after the fact whether condoms were used or not.
If these individuals were mainly concerned with the health and safety of performers, their views might at least be worth a second hearing, and their methods, while still questionable, would at least be well meant if misguided.
But their real objective has nothing to do with performer safety and everything to do with porn content, which they regard as setting a bad example to viewers following safer sex precautions in the viewers’ private lives. Kerndt makes his priorities crystal clear in his 2007 jeremiad published by the Public Library of Science: “The portrayal of unsafe sex in adult films may also influence viewer behavior. In the same way that images of smoking in films romanticize tobacco use, viewers of these adult films may idealize unprotected sex. The increasingly high-risk sexual behavior viewed by large audiences on television and the Internet could decrease condom use. Requiring condoms may influence viewers to see them as normative or even sexually appealing, and devalue unsafe sex. With the growing accessibility of adult film to mainstream America, portrayals of condom use onscreen could increase condom use among viewers, thereby promoting public health.”
This is basically Weinstein’s line as well. They want to empower the state to punish porn producers for not requiring condom use because they regard the depiction of sex without barrier protections as unhealthy viewing for the audience.
Unfortunately, in the service of that goal, they’re quite prepared to put at risk the performers they claim to be protecting.
The Future
Cal-OSHA, which would be charged with imposing the mandatory condom scheme outlined in Kerndt’s plan, has only one established standard for dealing with potentially pathogenic bodily fluids. It was written for health workers and IACB summarizes nicely the more extreme and irrelevant provisions of Cal-OSHA’s blood-borne pathogen provisions:
“The last time OSHA became involved, the rules they set down were pure overkill, mandating not only condoms for high-risk acts, but use of dental dams, gloves, and, I kid you not, eye goggles for all sexual contact. They basically took the rules they've mandated for medical workers and applied this to the porn industry, without regard for context.”
As he says, such an unworkable regimen would be universally flouted, essentially turn a legal industry into an illegal in which state regulations were routinely violated, making producers and other performers liable for confiscatory fines and other administrative restraints clearly imposed by an agency whose agenda is not regulatory, but rather prohibitionist.
No surprise there. Members of Cal-OSHA’s staff, like those of Dr. Fielding’s department, have been unbendingly hostile in all my face-to-face dealings with them since 2004. They’re approach to performer safety is to destroy those performers livelihoods and drive the industry out of the state completely. Confronted with this prospect, Dr. Kerndt stated directly that he wouldn’t object if that were the result.
Worse, if that’s possible, than Cal-OSHA’s plan for porn would be the means through which it would have to be put in place. Cal-OSHA has jurisdiction only over employees. Independent contractors, which is how porn performers not under contract to specific companies, are currently classed under state law, would not be subject to Cal-OSHA supervision unless reclassified as employees.
So what, you might ask, is so bad about that? After all, it would make them eligible for workman’s comp and provide them with a mechanism for reporting unsafe working conditions on the set.
There’s just one little hitch in this plan. It is against the law in California for any employer to require an HIV test, or even to ask about a potential employee’s HIV status, as a condition of employment. Doing so is considered employment discrimination and carries significant penalties to the employer.
In fact, if performers were considered employees rather than contractors, it would be illegal for a producer to hire a performer on the grounds that said performer was, in fact, HIV positive. That’s right. Producers would be required to hire HIV+ performers, and if other performers didn’t like working with them, those performers would be fired while the HIV+ performers would be allowed to remain on the set until partners could be found who would work with them.
This, put simply, is insanity. In thirty-five years of legal pornography in this country, not a single clinical death has been correctly attributed to HIV transmission in the making of heterosexual porn. During that time, thousands of sexually active young Californians from very similar demographic cohorts have died of AIDS contracted in circumstances utterly unrelated to porn, including a significant number whose cases were contracted in bathhouses and sex clubs where HIV prevention has been the province of governmental oversight.
Our good fortune in porn is directly attributable to two things: constant voluntary testing and the much-derided conceit of the external ejaculation, which significantly reduces the risk of serum transmission through mucous membranes.
But wait a minute, didn’t I say that gay porn is made without testing but with condoms instead? Why wouldn’t that work in straight porn as well?
In part, because it doesn’t really work in gay porn. Though condom use has become less of an absolute in gay porn, it has been the standard for 20 years, during which time, unlike in straight porn, a number of performers have died of AIDS. This is most likely a result of imprudent behavior in their personal lives rather than on the set, but it points to an important difference between the composition of gay and straight talent pools.
An unspoken by generally accepted truth in gay porn is that many performers are already HIV+ when they enter the industry. Producers and directors make quiet but diligent efforts to pair them only with other already-infected partners, but the fact remains that testing is regarded as pointless in gay porn because, as one of the best known gay directors told me privately, “it’s just assumed that all of our talent is or will be infected and that the use of barriers is a secondary precaution.”
Our model in straight porn is to try and keep the talent pool disease free rather than simply accept the permanent presence of infected performers as a necessary work-around. If you visit the web site that lists all the porn performers who have died during the past twenty years, you’ll find that the overwhelming majority of them were gay male players who died of AIDS. The risk of a similar situation in straight porn is what Fielding, Kerndt, Weinstein, et al would subject us to in the interest of setting a better example for our audiences.
Thanks but no thanks to that noble sacrifice. For uninfected female performers, not only are condoms in the absence of testing a more dangerous approach than bare-backing with tested performers, it actually puts them at greater risk. To understand why, it’s necessary to recognize that sex on camera is quite different from sex in private.
As a director, I allow two and a half hours to shoot a typical boy-girl sex scene. That’s over two hours of intercourse in various positions with constant stops and starts during which male performer’s erections rise and fall, condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs. Most condom-only female performers eventually abandon condom use, not under pressure from producers, but rather because of the constant rawness and end-on-end bacterial infections produced by countless hours of latex drag.
Condoms are fine for ordinary folks having a quick bang, but they’re not suited to effective use in porn. I know whereof I speak because I refuse to shoot as a director for any company that won’t allow performers to use condoms if they wish and have probably shot more condom footage than any straight porn director alive. I began doing so way back in 1993, when all we had was the elisa test, which though still regarded as the so-called gold standard outside of porn because its antibody detection screening is virtually never wrong when it comes to detecting active HIV cases (if you’ve got HIV antibodies in your bloodstream, you’ve got HIV, no doubt about it), may not detect a case for as long as six months, while the PCR-DNA test has a window period no longer than two weeks. That’s still too long, and I would personally prefer twice-monthly testing to reduce the false-negative results that contributed to the situation in 2004. But it’s a lot safer than a six-month interval during which a newly infected person would be at his or her most contagious, having the highest viral load because antibodies had not yet begun to fight the progression of the disease process. From having shot so much condom footage, I would estimate the condom failure rate at about 15% in any given encounter.
So, if we give up universal testing in favor mandatory condoms, what we would have is a large group of internally compromised female performers having sex with a number of men whose HIV status would be unknown.
I ask anyone reading this who is HIV- if he or she would knowingly have penetrative intercourse with someone who they knew for a fact was HIV+, condom or no condom. I’m betting the honest answer for the overwhelming majority of readers would be “no way.” That is just plain common sense.
The choice is pretty simple and pretty stark: condoms or testing. It is legally impossible to have both. At the investigative hearings in 2004, lawyers for the ACLU made it clear that numerous challenges to the anti-discrimination laws sought by specific professions to weed out HIV+ potential employees were successfully resisted in court challenges and that the ACLU would vigorously resist any attempt to gain such a waiver for the porn industry.
I repeat: testing or condoms: that is the choice. If you’re HIV-, it’s pretty much a no-brainer.
Okay, so that logic fails to persuade, Fielding and the rest prevail and some half-assed attempt is made to legislate condom use in het porn. How is this to be accomplished? On any given day, there are approximately 200 porn scenes shot in the Los Angeles area. What agency would police all those scenes through the use of what body of inspectors paid for by how many millions of taxpayer dollars that this state, which is flat broke, simply cannot pay? It would quickly become obvious that the law would be unenforceable, and producers, knowing full well that condom use not only adversely affects the sales of porn products but also obstructs the making of them, would simply play the short odds of getting caught in a very loose legal net by ditching condoms altogether. The outcome would then be use of neither condoms nor testing, the worst of all possible worlds.
While porn-bashers love to claim that only a few big companies bother with testing and that all kinds of other porn is produced without it, the fact is that our voluntary compliance model has been adopted not only in Los Angeles and Miami, the two biggest theaters of porn production, but also in much of Europe. It is honored by most internet content creators and by magazine photographers as well. There is a clear liability issue in failing to do so, should the worst happen, and whatever one might think of porn producers, few would argue that they are unconscious of legal risks, as they face those legal risks in other aspects of their work on a daily basis.
What we have now is a system that has proven its reliability over a dozen years, during which a total of four people have been infected with HIV while making porn.
What we are being stridently told to do once again is abandon something that works for what amounts to a grisly science project in order to satisfy the inchoate desire of uninformed outsiders to use us at the risk of our health as models for correct sexual behavior by those who watch what we make.
The only intelligent words quoted in the most recent example of yellow journalism from The Times were spoken, not at all surprisingly, by producer John Stagliano, himself HIV+ from a non-industry-related sexual encounter.
“A government agency the size of Los Angeles couldn’t stop it (the making of non-condom porn). It’s not going to change.”
We all better hope he’s right. The changes we’re being pressured to make are foolish, dangerous and, as usual, completely indifferent to the possible consequences to actual sex-workers.
Thankfully, those who would have to write those changes into law seem very much disinclined to do so on the basis of hectoring by a handful of self-appointed anti-porn crusaders whose real ambition is not to regulate this industry, but rather to destroy it by making it so manifestly dangerous that no one in his or her right mind would participate in it. That no one in Sacramento seems the least bit eager to sign off on the bizarre enabling legislation that would brig this horrific reality into being demonstrates once again that anyone with the sense to pour piss out of a boot knows more about most things than those who pass themselves off as experts on any given subject.
But the terrible truth underlying all the potential and actual strategies, good and bad, for keeping the porn talent-pool 100% safe from HIV is that this is not now and never will be possible, no matter what methods are used. HIV exists in the general population from which porn performers are drawn and of which they remain a part. AIM can and does keep out a surprising number of aspiring performers who try to enter the business already infected, usually without knowing their own status until their first AIM test.
But no matter what methods are used or regulations are imposed, HIV cases will inevitably slip the net from time to time. Early identification and quarantine are the most effective tools for limiting the danger this unassailable fact creates, but they will always constitute action after the fact, much as Cal-OSHA is complaint-driven and, unless its powers are hugely and possibly illegally expanded as described above, system works and would only be able to punish those they deem as having broken the rules after some incident occurs for them to investigate.
It is still much, much safer to have barrier-free sex with a tested porn performer than with a stranger met in a bar, but porn performers themselves have been known to have barrier-free sex with strangers met in bars. Porn performers do not represent a threat to the health of the citizenry of California as Dr. Fielding would have us believe. It’s the other way around. Outsiders with unknown histories pose a threat to our well-observed community.
This risk is impossible to gauge and impossible to eliminate entirely, short of keeping performers locked up between shoots, an idea that would probably get some traction with Fielding, Kerndt, Fryer, Weinstein and the rest of their gang.
But with Gitmo being closed down, I somehow doubt that Swiftian proposal, no more absurd than applying Cal-OSHA’s blood-borne pathogen standard to porn, will be put into effect.
Instead, whatever we do, there will always be some risk associated with sex among groups of young people whose behavior off-set cannot be entirely controlled.
Personally, I’ve always thought the term “safe sex” was something of an oxymoron. Whatever measures are taken, physical intimacy is never completely free of risks of various kinds. It is from that understanding that the current harm-reduction approach, which has saved countless lives over the past decade by acting as an alarm system rather than a policing operation, evolved as it has.
No matter what we do, we will find ourselves back here from time to time, dealing with the worst outcomes as they inevitably arise.
No occupation is without hazard. When compared to things like commercial fishing, mining, logging, construction, fire-fighting and, of course, military service, porn rates very low on the list of dangerous occupations according to The Bureau of Labor Statistics. It’s no accident that porn is as safe as it is. The porn community’s own efforts, free of the ignorant and sometimes malicious attempts to interfere with them, have kept it that way.
But three is no absolute guarantee that any system will always work, and attempting to require that guarantee in porn, when it is not required in any other occupation, carries with it the prospect of truly catastrophic failure.
The existing system is not perfect, but it is far superior to any of the schemes proposed to replace it.
That is where we are and that, no matter what happens, is where we’re likely to end up staying.
I have no doubt that some of these observations will generate the predictable onslaught of ignorant bullshit in the comment thread that follows as the usual crowd of porn-bashers and AIM haters emerge from under their various rocks.
I have no intention of debating this urgent matter with any of them. I will, time permitting, attempt to answer reasonable questions couched in polite language by those with a genuine interest in the well-being of the community to which I belong.
The current situation has long-term implications for public health and public policy reaching beyond the parochial concerns of the porn industry, those who support it and those who oppose it. The ghoulish glee, complete dishonesty and utter disregard for the potential consequences to actual sex-workers in the attempt to politicize a single, isolated episode with which rad-fems and self-styled porn experts have seized upon this thing is disgraceful and says much more about them than it does about us.
For those implications to be considered rationally, there must first be some clear-sighted recognition of the known facts of this particular case. I’ll try to provide them, and then I’ll offer my perspective on the spin they’ve been given and my own best assessment of the correct course of action for the industry itself and for the greater community of which it is a part. I do not pretend to objectivity in this matter. I don’t have that luxury. I make my living as a pornographer and I am married to an active performer exposed to the same risks as everyone else in the long-term talent pool here, where the majority of porn in sold in America is made.
Where We Are
As many here already know, but some might not, AIM administers testing for HIV and other STIs to the porn performer community, as well as to other sex workers and to population at large. AIM also offers medical treatment, counseling, education and support services to its clients, who include both sex-workers and those uninvolved in sex work in any way.
AIM’s primary function as a community-based, non-profit organization using the most advanced testing methods available is to help maintain a voluntary, performer-supported system of health-status monitoring enabling both performers and producers to know with the greatest possible certainly that working performers are free of HIV and other STIs.
The informal but stringently observed practice here in the Los Angeles area requires monthly testing of all performers in heterosexual pornography to be tested no less than once every 28 days for HIV, Chlamydia and Gonorrhea, every sixty days for Syphilis, and to authorize access to the results of those tests through a computerized data base to both other performers with whom they might be hired to work and to producers who might hire them. The gay side of the industry has opted for barrier protections and does not require performer testing, though some gay performers test on their own initiative.
Since 1997, AIM has performed over a hundred thousand such tests for the thousands of performers who have passed through the porn industry during that time. During those dozen years, a total of five active players on the heterosexual side of the industry have been diagnosed as HIV positive. Four cases were discovered in 2004 and one on June 4 this year.
The events of 2004, which received nationwide media coverage and inspired hearings by a special committee of the state legislature, were very different from the circumstances with which we’re confronted this time and those differences require close scrutiny before any broader conclusions are drawn.
Unfortunately, irresponsible gossip bloggers, a sensationalistic local press and various activists with different agendas have already begun spinning the few facts thus far made public to their own ends, with potentially disastrous consequences. Before that process whirls out of control, let’s have a look at what we actually know so far.
The performer, who was tested for HIV and other STIs on June 4, is a 42-year-old woman who had been working in porn for approximately one month prior to that date. Obviously, all details regarding the identity of this individual are subject to California’s strict medical privacy laws and will not be divulged here.
Like all new performers, she was tested prior to her first scene and received a clean bill of health at that time. During her brief career, she had sex on camera three times preceding June 4 and once, while her June 4 results were still pending, on June 5.
Typically, the PCR-DNA test AIM uses, which can detect HIV viral matter in the bloodstream in as short a time as ten days after infection, yields results in 24 hours. If the results are negative, the performer and/or anyone casting the performer can obtain those results through AIM’s computerized database or from the clinic directly via phone or fax. These disclosures can only be made to third parties with the performer’s written permission.
A confirmatory test, standard procedure in any instance of a positive or inconclusive result, also came back positive on June 6.
The performer and her two primary contacts since June 4 (one a male performer, the other her boyfriend) were immediately notified and quarantined, as were six secondary partners of her two primary contacts.
As of that point, the prospect of contagion from the female performer who tested HIV+ to the rest of the porn talent pool and the surrounding population was contained and remains so now.
Both her primary contacts and their secondary contacts have been tested and are HIV- as of now. They will be retested twice during the coming month and if those tests are also negative, which is highly probable given the nature of the contacts (vaginal intercourse without internal ejaculation and female to female exposure), the quarantine will be lifted and those performers will be able to return to work at no unusual risk to their partners.
In short, this single, isolated case was caught early, notification was given promptly, including to governmental public health agencies mandated by law for notification of new HIV infections, and the infected performer has already been referred for treatment. She’s out of the business. Her few contacts are HIV- and likely to remain so, but will not be working until that is certain.
In no way does this case resemble the situation in 2004, which involved a perfect storm of highly active, long-term members of the performing community, particularly high-risk sex practices (double-anal penetrations and internal ejaculations) on multiple sets and a much larger group of primary and secondary contacts throughout an entire month-long testing cycle. There was clear evidence of performer-to-performer HIV infection in the 2004 episode. There is no such evidence in the present instance and little chance any will emerge.
While it is certainly true that less serious STIs are not uncommon in the industry, they are treatable and we treat them as they arise. We notify partners and treat them too. It would be lovely if the rest of the country were as diligent about these problems as the porn-making community.
This is pretty much where the facts end and where the speculation, fear mongering, politicking and outright lying begin.
The lies started, as they so often do these days, with unsubstantiated reports from remotely involved parties appearing on porn gossip and chat sites. Perhaps the most harmful of these lies was that the infected performer was given a false negative result from her June 4 test by personnel at AIM prior to working on June 5.
This didn’t happen. It couldn’t have because her results did not come back until June 6, as laboratory reports conclusively establish. While AIM’s testing protocols are not foolproof, as nothing wrought by human hands can be, clinic procedures absolutely forbid clinic staff from discussing pending test results with anyone, including those tested, until the lab reports are in. These rules were observed to the letter in this case.
Another false accusation spread around the ‘net claimed that AIM made no attempt to stop the performer from working while her test was still pending. AIM has no legal authority to forcibly prevent anyone from doing anything. However, the importance of voluntary compliance with AIM’s testing and quarantine procedures is well understood throughout the industry and when the positive results were verified, the infected performer’s contacts have honored AIM’s request to refrain from performing until all re-testing is completed. Again, that is how the system works, and it worked quickly and effectively this time as it has in the past.
But vicious as these distortions of reality were, their sources were already well known for their hostility toward AIM’s voluntary harm-reduction approach and knowledgeable insiders viewed them with the skepticism these sources have richly earned by their past behavior.
It wasn’t until the Los Angeles Times, Los Angeles County health officer Dr. Jonathan Fielding, Cal-OSHA spokesman Dean Fryer and Aids Healthcare Foundation President Michael Weinstein got into the act that the bigger and much larger and more ominous falsehoods were put in general circulation.
Fielding is a long-time adversary of AIM’s whose department has a history of harassing and defaming the organization dating to well before the 2004 cases. Fielding’s hirelings have attempted to obtain confidential medical records of AIM’s clients, made threatening calls to AIM clients in efforts to intimidate them into giving information his department has no legal right to collect and publicly accused AIM of “stonewalling” his department’s attempts to investigate STI transmissions in the industry, though he knows as well as we do that California law is extremely specific regarding what we must report to government agencies and what we are forbidden to report to anyone. Members of Fielding’s staff have heckled AIM board members, myself included, from the floor at public forums unrelated to his agency’s mission and Fielding himself has lied to my face in his office in front of two other AIM board members and two members of his own staff regarding his intended recommendations to the state legislature prior to the investigative hearing into the 2004 cases.
But none of Fielding’s cynical machinations sinks to the level of his false assertion, trumpeted by The Times, that AIM has “concealed” an additional 16 HIV infections in the industry since 2004. In fact, eleven of those cases involved male performers in gay porn who are not part of AIM’s client base and who do not test with AIM and four were private citizens not affiliated with porn who sought testing at AIM for personal reasons. As required by law, all HIV infections detected by AIM were reported to Fielding’s department, which is how he comes to know about them, but were not disclosed to AIM’s heterosexual porn industry clients because they did not involve het porn in any way. And yet The Times reported this deliberate and heinous distortion of the truth under the blaring headline: “More Porn HIV Cases Disclosed.” In point of fact, there is no way AIM, Fielding or anyone else can know that the cases involving the gay performers were porn-related, as AIM does not monitor that population. But then again, The Times also characterizes mainstream porn as a $12 billion dollar a year industry, an unsourced figure frequently repeated in mainstream media and universally scorned as a ridiculous exaggeration by industry insiders.
Meanwhile, Cal-OSHA’s Fryer alleges in the same story that “AIM Healthcare has never been cooperative with us and our investigations,” because AIM has obeyed the law and refused to give out client information to agencies not entitled to said information.
And then there’s AHF’s Weinstein, who has characterized the porn industry overall as “a poster-child for heterosexual HIV transmission” and proclaimed that: “This industry screams for regulation. Cal-OSHA needs to require condoms be used in any film. Yesterday.” Weinstein has organized picketing in front of Larry Flynt’s offices to demand that the straight porn industry adopt mandatory condom use and has refused to meet with industry representatives to discuss the reasoning behind the current standards. He is what is colloquially known as a hothead.
All these individuals, and a few converts they’ve made at the margins of the industry, support a truly mad plan by Fielding’s deputy Dr. Peter Kerndt to implement state-legislated regulations requiring condom use throughout the industry that would make it illegal to distribute sexually explicit materials created without the use of condoms, even though Kerndt himself admits that digital post production effects could theoretically render it impossible to determine after the fact whether condoms were used or not.
If these individuals were mainly concerned with the health and safety of performers, their views might at least be worth a second hearing, and their methods, while still questionable, would at least be well meant if misguided.
But their real objective has nothing to do with performer safety and everything to do with porn content, which they regard as setting a bad example to viewers following safer sex precautions in the viewers’ private lives. Kerndt makes his priorities crystal clear in his 2007 jeremiad published by the Public Library of Science: “The portrayal of unsafe sex in adult films may also influence viewer behavior. In the same way that images of smoking in films romanticize tobacco use, viewers of these adult films may idealize unprotected sex. The increasingly high-risk sexual behavior viewed by large audiences on television and the Internet could decrease condom use. Requiring condoms may influence viewers to see them as normative or even sexually appealing, and devalue unsafe sex. With the growing accessibility of adult film to mainstream America, portrayals of condom use onscreen could increase condom use among viewers, thereby promoting public health.”
This is basically Weinstein’s line as well. They want to empower the state to punish porn producers for not requiring condom use because they regard the depiction of sex without barrier protections as unhealthy viewing for the audience.
Unfortunately, in the service of that goal, they’re quite prepared to put at risk the performers they claim to be protecting.
The Future
Cal-OSHA, which would be charged with imposing the mandatory condom scheme outlined in Kerndt’s plan, has only one established standard for dealing with potentially pathogenic bodily fluids. It was written for health workers and IACB summarizes nicely the more extreme and irrelevant provisions of Cal-OSHA’s blood-borne pathogen provisions:
“The last time OSHA became involved, the rules they set down were pure overkill, mandating not only condoms for high-risk acts, but use of dental dams, gloves, and, I kid you not, eye goggles for all sexual contact. They basically took the rules they've mandated for medical workers and applied this to the porn industry, without regard for context.”
As he says, such an unworkable regimen would be universally flouted, essentially turn a legal industry into an illegal in which state regulations were routinely violated, making producers and other performers liable for confiscatory fines and other administrative restraints clearly imposed by an agency whose agenda is not regulatory, but rather prohibitionist.
No surprise there. Members of Cal-OSHA’s staff, like those of Dr. Fielding’s department, have been unbendingly hostile in all my face-to-face dealings with them since 2004. They’re approach to performer safety is to destroy those performers livelihoods and drive the industry out of the state completely. Confronted with this prospect, Dr. Kerndt stated directly that he wouldn’t object if that were the result.
Worse, if that’s possible, than Cal-OSHA’s plan for porn would be the means through which it would have to be put in place. Cal-OSHA has jurisdiction only over employees. Independent contractors, which is how porn performers not under contract to specific companies, are currently classed under state law, would not be subject to Cal-OSHA supervision unless reclassified as employees.
So what, you might ask, is so bad about that? After all, it would make them eligible for workman’s comp and provide them with a mechanism for reporting unsafe working conditions on the set.
There’s just one little hitch in this plan. It is against the law in California for any employer to require an HIV test, or even to ask about a potential employee’s HIV status, as a condition of employment. Doing so is considered employment discrimination and carries significant penalties to the employer.
In fact, if performers were considered employees rather than contractors, it would be illegal for a producer to hire a performer on the grounds that said performer was, in fact, HIV positive. That’s right. Producers would be required to hire HIV+ performers, and if other performers didn’t like working with them, those performers would be fired while the HIV+ performers would be allowed to remain on the set until partners could be found who would work with them.
This, put simply, is insanity. In thirty-five years of legal pornography in this country, not a single clinical death has been correctly attributed to HIV transmission in the making of heterosexual porn. During that time, thousands of sexually active young Californians from very similar demographic cohorts have died of AIDS contracted in circumstances utterly unrelated to porn, including a significant number whose cases were contracted in bathhouses and sex clubs where HIV prevention has been the province of governmental oversight.
Our good fortune in porn is directly attributable to two things: constant voluntary testing and the much-derided conceit of the external ejaculation, which significantly reduces the risk of serum transmission through mucous membranes.
But wait a minute, didn’t I say that gay porn is made without testing but with condoms instead? Why wouldn’t that work in straight porn as well?
In part, because it doesn’t really work in gay porn. Though condom use has become less of an absolute in gay porn, it has been the standard for 20 years, during which time, unlike in straight porn, a number of performers have died of AIDS. This is most likely a result of imprudent behavior in their personal lives rather than on the set, but it points to an important difference between the composition of gay and straight talent pools.
An unspoken by generally accepted truth in gay porn is that many performers are already HIV+ when they enter the industry. Producers and directors make quiet but diligent efforts to pair them only with other already-infected partners, but the fact remains that testing is regarded as pointless in gay porn because, as one of the best known gay directors told me privately, “it’s just assumed that all of our talent is or will be infected and that the use of barriers is a secondary precaution.”
Our model in straight porn is to try and keep the talent pool disease free rather than simply accept the permanent presence of infected performers as a necessary work-around. If you visit the web site that lists all the porn performers who have died during the past twenty years, you’ll find that the overwhelming majority of them were gay male players who died of AIDS. The risk of a similar situation in straight porn is what Fielding, Kerndt, Weinstein, et al would subject us to in the interest of setting a better example for our audiences.
Thanks but no thanks to that noble sacrifice. For uninfected female performers, not only are condoms in the absence of testing a more dangerous approach than bare-backing with tested performers, it actually puts them at greater risk. To understand why, it’s necessary to recognize that sex on camera is quite different from sex in private.
As a director, I allow two and a half hours to shoot a typical boy-girl sex scene. That’s over two hours of intercourse in various positions with constant stops and starts during which male performer’s erections rise and fall, condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs. Most condom-only female performers eventually abandon condom use, not under pressure from producers, but rather because of the constant rawness and end-on-end bacterial infections produced by countless hours of latex drag.
Condoms are fine for ordinary folks having a quick bang, but they’re not suited to effective use in porn. I know whereof I speak because I refuse to shoot as a director for any company that won’t allow performers to use condoms if they wish and have probably shot more condom footage than any straight porn director alive. I began doing so way back in 1993, when all we had was the elisa test, which though still regarded as the so-called gold standard outside of porn because its antibody detection screening is virtually never wrong when it comes to detecting active HIV cases (if you’ve got HIV antibodies in your bloodstream, you’ve got HIV, no doubt about it), may not detect a case for as long as six months, while the PCR-DNA test has a window period no longer than two weeks. That’s still too long, and I would personally prefer twice-monthly testing to reduce the false-negative results that contributed to the situation in 2004. But it’s a lot safer than a six-month interval during which a newly infected person would be at his or her most contagious, having the highest viral load because antibodies had not yet begun to fight the progression of the disease process. From having shot so much condom footage, I would estimate the condom failure rate at about 15% in any given encounter.
So, if we give up universal testing in favor mandatory condoms, what we would have is a large group of internally compromised female performers having sex with a number of men whose HIV status would be unknown.
I ask anyone reading this who is HIV- if he or she would knowingly have penetrative intercourse with someone who they knew for a fact was HIV+, condom or no condom. I’m betting the honest answer for the overwhelming majority of readers would be “no way.” That is just plain common sense.
The choice is pretty simple and pretty stark: condoms or testing. It is legally impossible to have both. At the investigative hearings in 2004, lawyers for the ACLU made it clear that numerous challenges to the anti-discrimination laws sought by specific professions to weed out HIV+ potential employees were successfully resisted in court challenges and that the ACLU would vigorously resist any attempt to gain such a waiver for the porn industry.
I repeat: testing or condoms: that is the choice. If you’re HIV-, it’s pretty much a no-brainer.
Okay, so that logic fails to persuade, Fielding and the rest prevail and some half-assed attempt is made to legislate condom use in het porn. How is this to be accomplished? On any given day, there are approximately 200 porn scenes shot in the Los Angeles area. What agency would police all those scenes through the use of what body of inspectors paid for by how many millions of taxpayer dollars that this state, which is flat broke, simply cannot pay? It would quickly become obvious that the law would be unenforceable, and producers, knowing full well that condom use not only adversely affects the sales of porn products but also obstructs the making of them, would simply play the short odds of getting caught in a very loose legal net by ditching condoms altogether. The outcome would then be use of neither condoms nor testing, the worst of all possible worlds.
While porn-bashers love to claim that only a few big companies bother with testing and that all kinds of other porn is produced without it, the fact is that our voluntary compliance model has been adopted not only in Los Angeles and Miami, the two biggest theaters of porn production, but also in much of Europe. It is honored by most internet content creators and by magazine photographers as well. There is a clear liability issue in failing to do so, should the worst happen, and whatever one might think of porn producers, few would argue that they are unconscious of legal risks, as they face those legal risks in other aspects of their work on a daily basis.
What we have now is a system that has proven its reliability over a dozen years, during which a total of four people have been infected with HIV while making porn.
What we are being stridently told to do once again is abandon something that works for what amounts to a grisly science project in order to satisfy the inchoate desire of uninformed outsiders to use us at the risk of our health as models for correct sexual behavior by those who watch what we make.
The only intelligent words quoted in the most recent example of yellow journalism from The Times were spoken, not at all surprisingly, by producer John Stagliano, himself HIV+ from a non-industry-related sexual encounter.
“A government agency the size of Los Angeles couldn’t stop it (the making of non-condom porn). It’s not going to change.”
We all better hope he’s right. The changes we’re being pressured to make are foolish, dangerous and, as usual, completely indifferent to the possible consequences to actual sex-workers.
Thankfully, those who would have to write those changes into law seem very much disinclined to do so on the basis of hectoring by a handful of self-appointed anti-porn crusaders whose real ambition is not to regulate this industry, but rather to destroy it by making it so manifestly dangerous that no one in his or her right mind would participate in it. That no one in Sacramento seems the least bit eager to sign off on the bizarre enabling legislation that would brig this horrific reality into being demonstrates once again that anyone with the sense to pour piss out of a boot knows more about most things than those who pass themselves off as experts on any given subject.
But the terrible truth underlying all the potential and actual strategies, good and bad, for keeping the porn talent-pool 100% safe from HIV is that this is not now and never will be possible, no matter what methods are used. HIV exists in the general population from which porn performers are drawn and of which they remain a part. AIM can and does keep out a surprising number of aspiring performers who try to enter the business already infected, usually without knowing their own status until their first AIM test.
But no matter what methods are used or regulations are imposed, HIV cases will inevitably slip the net from time to time. Early identification and quarantine are the most effective tools for limiting the danger this unassailable fact creates, but they will always constitute action after the fact, much as Cal-OSHA is complaint-driven and, unless its powers are hugely and possibly illegally expanded as described above, system works and would only be able to punish those they deem as having broken the rules after some incident occurs for them to investigate.
It is still much, much safer to have barrier-free sex with a tested porn performer than with a stranger met in a bar, but porn performers themselves have been known to have barrier-free sex with strangers met in bars. Porn performers do not represent a threat to the health of the citizenry of California as Dr. Fielding would have us believe. It’s the other way around. Outsiders with unknown histories pose a threat to our well-observed community.
This risk is impossible to gauge and impossible to eliminate entirely, short of keeping performers locked up between shoots, an idea that would probably get some traction with Fielding, Kerndt, Fryer, Weinstein and the rest of their gang.
But with Gitmo being closed down, I somehow doubt that Swiftian proposal, no more absurd than applying Cal-OSHA’s blood-borne pathogen standard to porn, will be put into effect.
Instead, whatever we do, there will always be some risk associated with sex among groups of young people whose behavior off-set cannot be entirely controlled.
Personally, I’ve always thought the term “safe sex” was something of an oxymoron. Whatever measures are taken, physical intimacy is never completely free of risks of various kinds. It is from that understanding that the current harm-reduction approach, which has saved countless lives over the past decade by acting as an alarm system rather than a policing operation, evolved as it has.
No matter what we do, we will find ourselves back here from time to time, dealing with the worst outcomes as they inevitably arise.
No occupation is without hazard. When compared to things like commercial fishing, mining, logging, construction, fire-fighting and, of course, military service, porn rates very low on the list of dangerous occupations according to The Bureau of Labor Statistics. It’s no accident that porn is as safe as it is. The porn community’s own efforts, free of the ignorant and sometimes malicious attempts to interfere with them, have kept it that way.
But three is no absolute guarantee that any system will always work, and attempting to require that guarantee in porn, when it is not required in any other occupation, carries with it the prospect of truly catastrophic failure.
The existing system is not perfect, but it is far superior to any of the schemes proposed to replace it.
That is where we are and that, no matter what happens, is where we’re likely to end up staying.
I have no doubt that some of these observations will generate the predictable onslaught of ignorant bullshit in the comment thread that follows as the usual crowd of porn-bashers and AIM haters emerge from under their various rocks.
I have no intention of debating this urgent matter with any of them. I will, time permitting, attempt to answer reasonable questions couched in polite language by those with a genuine interest in the well-being of the community to which I belong.
Friday, June 12, 2009
The Latest HIV/AIDS Porn Scandal: Has The Chain Finally Been Broken?
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