Regulators on collision course with porn industry over condoms

Two regulatory initiatives are aimed at forcing adult film performers to wear condoms for high-risk sexual acts depicted on-screen. Porn producers say such a requirement would threaten their livelihood.

Given California’s reputation for hassling businesses with petty regulations, it was probably only a matter of time before we heard squeals of complaint from what is arguably the San Fernando Valley’s most famous export industry.

Yes, I’m talking about porn.

The particular issue is how to protect adult film performers from sexually transmitted diseases such as AIDS and gonorrhea. Medical authorities say there’s only one way to do that reliably — require condoms for high-risk activities portrayed on screen (you know what I’m talking about). The industry says that’s a cure that may be worse than the threat of disease.

Two regulatory initiatives have brought the issue to the front burner. One is a proposed referendum for next June’s Los Angeles city ballot, sponsored by the L.A.-based AIDS Healthcare Foundation, which has begun collecting signatures. The measure would require condom use by any adult film production within the city limits.

California occupational safety and health officials are also working on a revision to the state’s rules on blood-borne pathogens regulation specifically tailored to the adult film industry.

The existing regulations, which date back to 1992, already require “barrier” protection, such as latex gloves and goggles, for workers exposed to infectious agents in blood. But they were written chiefly to apply to hospitals and nursing homes in which exposure would be accidental, even though they technically apply to porn shoots in which exposure is deliberate and which plainly aren’t practical if all performers have to be permanently swathed in latex (except in the few cases in which it’s part of the mise-en-scene).

State officials say they may relax standards for relatively low-risk activity depicted on-screen. But condom use for other activities is likely to be nonnegotiable.

Despite its outsized footprint in the Valley, adult entertainment has never been treated by politicians as though it’s a legitimate industry deserving of tax breaks and other favors. Although California is one of only two states in which adult film production is legal (the other is, go figure, New Hampshire) it won that status through a court ruling, not legislative action.

“It’s the ‘ick factor,'” speculates Michael Weinstein, president of the AIDS foundation and the driving force behind the city and state initiatives. “Politicians don’t want to deal with it because it involves sex, so they treat it as a dirty secret.”

Yet porn producers certainly sound like any other business owners beset by government meddling. They say the proposed rules would threaten their livelihood, because their customers tend to find condom use depicted on screen as a turnoff.

The loss of a market would add to the pressures on producers already grappling with technological change, piracy and the economic slump. “Contrary to popular belief, our industry is not recession-proof,” says Diane Duke, executive director of the Free Speech Coalition, a leading industry group.

To escape the rules, she says, producers would leave California, heading underground or offshore. That would not only mean the loss of jobs locally, but unravel the industry’s self-regulatory program, which requires monthly health tests of all working performers and provides a website through which producers can determine if prospective cast members have tested negative for HIV and other sexually transmitted diseases.

“It would be a disaster for performer safety, since it would destroy any hope of maintaining a centralized testing system that connects all performers,” veteran adult performer Nina Hartley told me by email. Try to regulate the sexual behavior of consenting adults in the industry, she says, “and I have no doubt that we would see mass non-compliance” that would overwhelm the resources of any government agency.

That’s a legitimate point, and there’s no reason to doubt the industry’s sincerity on that score. Yet as an argument against occupational safety officials’ performing their duties, it won’t do. Medical opinion is pretty much unanimous that if you’re trying to prevent disease, testing is no substitute for protection. Even with monthly tests, an infected performer can test negative and infect scores of partners before his or her infection is caught.

Public health officials say that despite the testing, 17 HIV cases were reported among adult film performers between 1998 and 2008, including a 2004 outbreak in which a performer who had been tested monthly exposed 14 female partners to the virus, infecting three. And because adult film performers don’t typically limit their sexual encounters to others in the industry, that’s a public health risk too.

Moreover, in past years the health and safety regime in the industry has been a mess. Starting about 1998, testing and treatment of performers was centralized through the nonprofit Adult Industry Medical Healthcare Foundation. But the organization was driven into bankruptcy this year after its database was hacked and private medical and personal records of as many as 15,000 performers were posted online. The more secure replacement website established by Duke’s organization allows producers to determine simply if a performer is available for work — meaning he or she hasn’t tested positive — without divulging the performer’s personal or medical details.

The industry position that individual performers are adults capable of making decisions about condoms for themselves may overstate the choices available to the on-screen rank-and-file. Often they’re paid chump wages and have careers lasting a few months. They’re exploited as “independent contractors” and often end up in the escort business, a dangerous route for the passage of infections between the film industry and the general population. Unlike workers with the formal status of employees, adult film performers are stuck with the bill for their own tests, which can run $150 a pop. That could be an obstacle to one possible regulatory compromise, which would be stepping up the test frequency to twice a month.

Still, no one is sure how bad the health crisis is in the industry, or if there even is a crisis. You could go blind trying to find undisputed statistics on STDs among performers. One study by the Los Angeles County Department of Public Health placed the incidence of gonorrhea in the industry at 60 times that of all county residents and 18 times that of the county population aged 18 to 29, but those estimates have been attacked as “fatally flawed” by Dr. Lawrence Mayer, a consulting epidemiologist for the industry who is on the faculty at Johns Hopkins medical school.

Mayer observes that the county couldn’t say how many performers were in the industry or how many cases it counted were reinfection suffered by the same individuals, which made its analysis “not only inaccurate, but also misleading and inflammatory.”

“Is there a plague? I don’t know,” he says, though he adds that purely as a public health measure, “I would prefer that all performers use condoms.”

For the industry, a confrontation with the implacable force of regulation is looking inevitable.

“We would like to find a way that the industry can be in compliance, and we want to find a way to protect employees,” says Deborah Gold, a Cal/OSHA official working on the rule revision. But she says there is no dissent among OSHA medical advisors that no testing program can substitute for condom protection for high-risk sexual acts.

And an even more implacable force may be Weinstein, who has made forcing condom use upon the adult film industry a crusade. “We’re not going to rest until this is dealt with,” he says.

http://www.latimes.com/health/la-fi-hiltzik-20111102,0,395281.column