WEST HOLLYWOOD — It's not as if the question of "To condom or not to condom" hasn't been on the minds of most adult industry members for at least a decade, and often been the subject of contentious discussion, especially during the periods around the 1998 infections generated by actor Marc Wallice, and the 2004 industry-wide shutdown caused by Darren James. At one point several of the major producers announced that henceforth, their productions would be condom-only ... but for several reasons, including large decreases in sales and objections from some of the major male talent, the decision didn't last.
"Condom-only for the industry would be devastating," observed Jeff Steward of JM Productions. "We went through this years ago when several companies said they were going to go condom-only, but they couldn't maintain it. They discovered that it wasn't profitable to have condoms in their movies. People watch porn for the fantasy. They live with condom use in reality every day, and that's the problem."
But a single case of HIV discovered in an actress on June 6, who to date has not been responsible for any secondary infections, has nonetheless ignited a firestorm of panic in the (generally HIV-ignorant) mainstream world, egged on by the Los Angeles Department of Health Services' Dr. Jonathan Fielding and abetted by Michael Weinstein, head of the AIDS Healthcare Foundation (AHF), whose organization has scheduled a protest march and rally tonight outside the Hustler Hollywood store at 8920 Sunset Boulevard in West Hollywood at 9 p.m. Monday evening.
The purpose of the march, according to AHF, is to "call for the introduction of landmark California legislation that would require the use of condoms by actors performing in porn videos produced by California's multi-billion dollar adult entertainment industry — a mainstay of the San Fernando Valley economy."
"Mainstay," though, is hardly the proper term. In fact, adult video/explicit content production is by far the Valley's biggest industry, dwarfing every other including mainstream Hollywood's satellite stages and the aerospace industry. And part of the reason for that success is the generally excellent job of preventing HIV infection among the straight segment of the adult performer population through the use of regular testing by PCR-DNA test.
"Not only would [condom-mandatory legislation] send this industry fleeing from California and scattering across the land with no supervision of any kind whatsoever; it would unquestionably undo a system that has successfully mitigated this hazard for 11 years," stated writer/director/producer Ernest Greene, a 20-plus year veteran of the adult industry and former Board Chair of the Adult Industry Medical Healthcare Foundation, or AIM. "Over an 11-year period we have consistently maintained a much lower incidence of HIV transmission in the porn performer community as compared to any comparable demographic of sexually active young people in the civilian population, much less those who engage in professional sex without the benefit of the voluntary testing regimen that we have in place. These things would be destroyed by any legislative attempt of this kind, and no system can effectively put in place to replace them."
Greene was referring to the gay segment of the adult industry, most of whose productions are condom-only due to the prevalence of HIV infection among the gay performer population. It is this widespread condom use, as well as the not-irrational fear that HIV-positives may be targeted for official governmental sanction, that has caused the majority of gay porn industry personnel to avoid the comprehensive sexually-transmitted infection (STI) testing regimen practiced by the straight side.
"Moreover, [veteran performer] Nina [Hartley, Greene's partner] has made this point and I will make it too: With ordinary civilian sex, the kind that regular people have, there's no question that barrier methods have a beneficial effect when it comes to preventing HIV transmission," Greene continued. "That would not necessarily be true with the kind of sex that is done in the making of pornography, which requires much longer periods of contact during which there are wavering states of erection, there are a variety of positions used, the result of which is that condom failures have a much higher percentage in professional sexual situations where you're talking about an hour or hour and a half of sex in different positions. And the result — and any of the female performers who have been condom-only will confirm if they speak honestly about this matter — is that the constant friction of having condoms changed and having condoms coming off and using condoms, the constant friction of doing so has often resulted in end-on-end minor infections and abrasions to their internal parts that would actually make them more vulnerable to disease transmission in situations in which, for whatever reason, a condom failed to operate or was not used, and that there are actual medical issues of safety involved in trying to mandate this thing."
And just how much risk do adult performers actually face? As has been previously noted, the Los Angeles Times has claimed that there have been 22 HIV infections among adult industry talent since 2004, but those statistics do not bear close scrutiny. For one thing, the figure includes Darren James and the three women he infected in 2004, as well as one transsexual performer who became HIV-positive (HIV+) during that year; the one actress who tested positive on June 6; plus 10 male performers presumably in the gay adult industry, most of whom already use condoms because of the prevalence of existing HIV+ performers. The remaining six who tested positive were people seeking to perform in adult movies for the first time, but who were found to be HIV+ on their first AIM-administered tests and were therefore not allowed to join the talent pool.
"Fact: She is the first female performer to test HIV positive since 2004," noted Dr. Marty Klein, author of the ground-breaking study America's War On Sex. "Fact: During that same time, non-porn [women] in America acquired HIV at the rate of 35 women per day... 'Porn actress gets HIV' makes great headlines, and the bravado of 'we’re gonna get legislation requiring condoms' will attract donations, but both are a desperate attempt to attack a legal industry that has a lower rate of disease than the rest of the country."
"Which city has the highest rate of HIV infection in the U.S.?" Dr. Klein continued. "A city obsessed with screwing everyone, but which has no porn production — Washington, D.C."
But one aspect of adult production that has worried Jeff Stewart is the fact that some performers on the straight side of the industry have worked in gay and transsexual movies, then returned to the hetero side.
"The gay side doesn't test, the straight side does," Steward noted, "and when you start having male or female talent who work in bisexual or transsexual movies and then come back over and do straight movies, it puts a lot of people at unnecessary risk, in my opinion. I just think the two should be separate, as probably unfair as it sounds; once you cross over into that category, I think you should stay over on that side because you're putting other people at risk. These girls come out here from Florida or Texas or whatever and I'm sure it doesn't enter their minds that the male talent they're working with could have just been fucking a shemale the day before."
Steward said he would consider a quarantine period for hetero performers who worked in gay or transsexual movies, even though there have been no recorded HIV infections among straight talent who did cross over.
"That's just bullshit," responded one actor who's worked in transsexual movies. "I get tested just like everybody else, and all the trannies I've ever worked with got tested as well before I worked with them, so nobody's got any reason to be afraid of me."
As for the proposed legislation mandating condom use in sex scenes in all adult movies, Greene sees several problems with the idea.
"The obvious fact is that there is no mechanism that can be created that will make it possible to truly enforce this," Greene observed. "This state, which cannot afford to hire teachers; this city, which cannot afford to hire policemen; this state, which is going to the federal government for a bailout, is not about to create a massive new bureaucracy with a bunch of inspectors to go around and see that this is actually done. What will happen, if you do that, on the other hand, especially if it's created by legislation, is create a terrible contradictory double-bind in which the incredibly successful system of voluntary compliance which we've had with the testing regimen that's existed since 1998 will be destroyed in favor of a system that substitutes barrier methods, that probably will not be employed with any degree of consistency, for testing which cannot be required as would be necessary for this enabling legislation to pass."
"Under California law, it is illegal to require – I cannot underscore this heavily enough – it is illegal to require HIV testing or in fact any knowledge of the HIV status of any potential employee as a condition of employment," Greene continued. "In other words, no producer would even be able to ask a performer if they had been tested, if such a law were to be enacted. So, here's what the results would actually be: There would be no increase of any significance in the use of barrier methods, but the common practice of asking people to bring tests and asking them to disclose the results of those tests and having a system of computerized database in which it is possible to access people's tests, would all be done away with the minute those performers were reclassified as employees, as they would have to be for this system to work, because then, that would constitute employment discrimination. It'll be testing or condoms, take your choice. Personally, as somebody who is the life-partner of a person who does this job for a living, I will take testing over the inconsistent use of condoms as required by a government in no position to enforce such a thing any day."
Greene also stated that the California ACLU has gone on record that they would make no exceptions to the anti-discrimination laws for adult performers any more than they have not for healthcare workers or others who might be in high risk professions.
Moreover, Greene suspects the motivations of those in the local community who are pushing for mandatory-condom-use laws.
"If you look at the people who are beating the drum for this thing, including Michael Weinstein and Dr. Fielding and Dr. [Peter] Kerndt and those individuals who have in one way or another a political agenda about this thing, it has much more to do with their view that pornography incorrectly models what they would like to see as universal sexual social behavior, and that their real concerns here are political," Greene charged. "If you read Dr. Kerndt's long disquisition on this subject last year, it was very clear that what he was attempting to do was to turn pornography into a medium of propaganda for his particular view of what safe sex ought to be for the civilian population, but what is safe for the civilian population is not necessarily safe for performers and the primary concern has to be the safety of the individuals who are engaged in this particular behavior. Their health should not be sacrificed to accept what somebody else considers to be a positive example."
"And as for those mysterious other cases," Greene continued, referring to the allegedly unreported HIV+ performers claimed by the Los Angeles Times, "it's very clear, Dr. Kerndt in particular loves to confuse sex that people have off-camera that gets them infected — particularly men who have sex with other men – he likes to conflate this with behavior that occurs on porn sets. It is a fact that HIV exists in the greater community. It is a fact that some people, particularly those who engage in high-risk practices in their private lives, are likely to contract it from time to time. This is not necessarily a set of facts relevant to what goes on in the creation of commercial pornography, where monitoring of behavior of this kind on the set is extremely careful, and our extremely careful way of doing this has overall kept this community in a state of relative safety – no system is foolproof – and the system that these fools want to put in is the exact opposite of foolproof. It will be a system run by fools and it will have a foolish effect on everybody, with catastrophic consequences to a few. If no system is foolproof but the system we have has had the effect of limiting HIV transmission in our community to a small fraction of what has occurred in similar demographics in the community at large, to dismantle that system to prove a point is not consistent with the Hippocratic Oath that these doctors swore to, nor is it consistent with the broader political goals, much less the narrower pragmatic goals of those organizations that are doing their best, so they claim, to prevent HIV from spreading in the general population. These people are really talking out of both sides of their mouths; they say they want to protect performers but they're willing to endanger performers in order to make a political point."
Greene and others suspect that the push for mandatory condom legislation has more to do with the Department of Health Services (DOHS) and AHF gaining control over porn production than with public health.
"This legislation will never pass," Greene predicted. "There is no way that it can survive a legal challenge; there is no money to create or enforce this kind of law; there is no agency that is empowered to do it. Cal-OSHA, which is a complaint-driven operation, would not be empowered to place inspectors on sets, and there are no resources to do so in any case. In other words, they're just whipping hysteria as they do all the time. There is essentially a feud between LA DOHS and AIM, that LA DOHS initiated. They're not happy because AIM has not bowed to their will, and they take every opportunity like this to go to the public press where they have a soapbox that they can use anytime and try to create mass hysteria about what amounts to an extremely narrow and limited threat that actually affect a tiny number of individuals in circumstances not necessarily related to their occupation. This is obviously yet another move by Dr. Fielding in his endless war with AIM and his endless attempt to get County Health put in control of this program. This is a political matter and it really is an exploitation of a tragic human situation for the purposes of political gain by a fairly notorious and frankly fairly disingenuous political appointee."
Dr. Klein is equally outraged.
"They tried this [legislation] five years ago and failed," Dr. Klein noted. "'We are going to find a legislator to author and carry a bill,' said AIDS Healthcare Foundation President Michael Weinstein. He likened such a requirement to worker safety provisions of California’s Labor Code, 'which requires the use of hard hats and other garments and barriers as safety precautions on certain California work sites and locations.' What nonsense. If only construction workers were as safe at work as porn actresses. No actresses have died as a result of workplace activity — a safety record that industries like construction, firefighting, and even the postal service cannot match."
"The unholy alliance between HIV activists and the state aims to shut down the porn industry, whose 'immorality' is hated by both," he continued. "Cal/OSHA knows that actresses are contractors, not employees, so most of its faux 'caring' is completely irrelevant. And AIDS activists know that if legislation goes through, it will create a massive bureaucracy with inspections and other regulations that will bring the industry to a crawl (and not in a good way)."
Just how many of these uncomfortable facts will come out at tonight's protest/rally is unclear, though Free Speech Coalition Executive Director Diane Duke is expected to appear and may be given an opportunity to present the industry's side of the argument.
"The circumstances are tragic and, of course, there is cause for grave concern anytime anyone is diagnosed with HIV," Duke said in an FSC press release. "That is why the Free Speech Coalition has, and continues to, work with our members and the industry to develop standards and best practices to protect industry performers. What we know is that government-imposed regulation does not work and self-regulation of our industry does. That is why our industry has been so successful in preventing HIV transmissions within the adult entertainment community."
She further noted that the subject of condom use is part of the Coalition's Code of Ethics for Adult Businesses, published last December, which can be found here.
It is unknown whether Hustler Video owner Larry Flynt himself will appear at Hustler Hollywood during the rally.