from www.theatlantic.com – Last week, the Adult Industry Medical Healthcare Foundation announced that an unidentified porn actor—known, as of this date, only as “Patient Zero”—had tested positive for HIV.

Since then, several film companies have temporarily shut down, an unknown number of performers are on “quarantine” while being tested, and rumors about the identity of the actor and the extent of the situation have been circulating fast.

This is not a first; an unidentified female performer was diagnosed with HIV in June 2009, and in 2004, actor Darren James contracted the disease and transmitted it to three fellow performers before being diagnosed. The latest news has renewed a long-standing cry: Why are performers having unprotected sex in the first place? Why aren’t condoms mandatory? Shouldn’t it be illegal to put people’s lives at risk?

The issue of condom use in pornography has been a subject of heated debate for a long time. California state labor laws do currently require companies to protect their workers from exposure to blood-borne pathogens, and state officials maintain that condoms are already required under those laws. Meanwhile the industry maintains that it has the ability to self-police and to provide adequate protection for its workers.

AIM provides monthly testing to performers, and keeps records that allow producers to check on the status of their actors, as well as logging on-screen partners to make tracking the disease easier.

The system, described by director Ernest Greene as “informal but stringently observed” in Los Angeles, doesn’t have the power to force HIV positive performers to stop working, or to control hiring decisions, but non-compliance affects an actor’s ability to find work. Still, it’s not foolproof: The HIV positive actress of last year apparently made a film with an expired test result in the brief window between being tested and receiving her diagnosis.

And so, the fight is on. LA County itself rejected a proposal to enforce condom use in February, citing limited resources and an insufficient ability to monitor work sites. Although officials supported condom use, they said that statewide legislation was the best solution. CAL-OSHA formed an advisory panel to explore the possibility of strengthening legislation that requires condom use; its initial pronouncements were called a “con job” by Carnal Nation, which also said mandatory condom use would effectively shut down the porn industry.

Mandatory condom use might not eliminate pornography, but, according to some, it might well create new health and safety risks. I spoke via e-mail with friend and Fleshbot editor Lux Alptraum, who has written about this issue in the past. She pointed out that, even if California mandates condom usage in pornography, there’s a pretty easy solution for companies that don’t want to use condoms. Hint: It involves not making pornography in California.

“If California were to mandate condoms in porn,” she wrote, “companies would likely just move to a different state, or even to a different country—there’s quite a bit of porn (even American porn) produced in Hungary, where I highly doubt condom use in porn would ever be regulated.”

Moving out of California, Alptraum notes, “would make the industry harder to monitor and possibly less safe for performers.”

In this, she’s backed by adult industry journalist Gram Ponante, who told me that “the enforcement of such legislation would only kill the ‘legitimate’ adult industry and send any other would-be pornographers underground to shoot in an utterly-unregulated and unenforceable black market.”

Of course, there’s the question of why condom use is being resisted. In straight pornography, Alptraum says, one of the key problems is that it hurts profits. But it’s not as simple as that. Alptraum also points out that sex sessions in pornography can last longer and be rougher than more informal, off-the-record sex, which makes the efficacy of the condoms themselves questionable.

Performers such as Nina Hartley and Belladonna have spoken against condom use, on the grounds that condoms hurt, make porn shoots difficult, and can even injure vaginal or anal tissue.

Then, there’s the fact that, in gay pornography (where some sources say Patient Zero initially worked) condoms are standard and actors still contract HIV. Alptraum describes the standard in gay porn as “condoms but no testing,” and the standard in straight porn as “testing but no condoms.” Some say that the first route is actually more dangerous, as a performer can start working without first being tested for HIV. Ernest Greene argues that, in order for OSHA regulations to take effect, producers would have to make performers employees, and that this would make it illegal to mandate HIV testing or to take HIV positive status into account while hiring.

“We’re not hearing the nuance of what people who have sex professionally have to say about sexual health and safer sex practice,” said Melissa Gira Grant, a writer and activist. She added: “The story is not as simple as ‘greedy porn people’ vs. ‘public health’—porn people have a stake in public health, and porn people are not some monolithic force, either.”

Ponante points out that pressures from outside the industry have resulted in positive changes in the past.

“The adult business has, to its credit, evolved in its ability to self-regulate,” he says, “but the stimulus has always come from without. This is true of the standardization of age-verification as well as industry standards of HIV testing.”

Still, in his estimation, enforcing outside regulation simply wouldn’t work as well as letting that self-regulation process evolve: “Performers are hyper-aware of the risks as well as prevention, and that cannot be said of the general population. So I think legislation to force outside regulation on the porn business will result in more infection, not less.”

As for the current climate in the wake of this latest diagnosis, the Los Angeles Department of Public Health released a statement saying that it had not received a report from AIM regarding new HIV cases within the industry, and that healthcare facilities were legally required to report cases within seven days; we received that statement on Friday, the 15th. AIM maintains it is operating in full compliance. The CAL-OSHA advisory panel meets again on October 25. The AIDS Healthcare Foundation has asked the city council to stop issuing permits for porn filming. There may well be increased pressure to provide an immediate solution, but the result looks very much like another iteration of the same debate.

And then, there’s the question of how this happened. Alptraum pointed out that, in all likelihood, Patient Zero was infected outside of work. Grant noted that what she terms “the sex/death panic angle” in media coverage can obscure the fact that non-professional sex is less strictly policed than pornography.

Most of us aren’t required to get regular testing, aren’t required to share results, and don’t have to use condoms or other barrier methods if our partners don’t ask us to. Patient Zero may not even have contracted HIV through sexual transmission. It’s valid to have concerns, and to want performers to have safe working conditions, but the fact remains that there is no such thing as absolutely safe sex. Pushing for a cure-all is doomed to failure; all that remains are measures of prevention, which can be better or worse, but cannot be perfect.