Ernest Greene writes on http://bppa.blogspot.com- 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 was the LA Times' story.]
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.
