Capitol Alert

California condoms in porn measure tests merits of covering up

Positive HIV tests of adult film stars have repeatedly rattled the pornography industry in recent years, amplifying calls to better protect performers.

But Eric Paul Leue doesn’t see an industry in need of change. He sees a model for sexual health.

“If we could roll out our testing protocol to the general public and everyone got tested every two weeks, I can guarantee you we could slash the 50,000 new (HIV) infections a year below the mortality rate,” said Leue, who heads an industry association called the Free Speech Coalition and was 2014’s Mr. Los Angeles Leather. “We could create a population that would be so much healthier.”

Porn is popular and fighting HIV is important: on those points, at least, the adult film industry and proponents of a November ballot initiative mandating condoms in adult films produced in California can agree. But the concord ends there.

Public health experts and HIV activists are among those who disagree, splitting over the proposal’s likely effectiveness and on the scope of the risk performers currently face.

Six adult performers have been publicly identified as HIV-positive since 2004, temporarily shutting down filming and prompting questions about industry safeguards.

“The adult industry told me that I had to perform without condoms if I wanted to keep my job,” an HIV-positive performer named Cameron Adams testified before the Legislature in 2014. “They know they could take advantage of women like me.”

The industry counters that Adams and other performers contracted HIV off the film set and accuses critics of using a few isolated cases to condemn a system that is working. They tout a new recommended system of testing within two weeks of shoots.

Yet the case of a performer named Darren Edwards, who tested HIV positive after a 2004 shoot in Brazil, illustrates potential weaknesses of relying on testing. Edwards tested negative a week before he went on to have unprotected sex with two performers. In a 2014 case that the industry attributes to “an underground, unregulated Vegas shoot,” a performer tested negative and then had unprotected sex with 12 other performers before his next test, 22 days later, and caught the virus.

A Centers for Disease Control and Prevention analysis concluded he contracted HIV off-set but was still able to spread it because the virus can incubate before showing up on tests. For that reason, the report urges condom use.

“A lot of the studios that are filming do not comply with the protocol,” said Dr. Christopher Ried, who directs HIV and STD services for the Orange County Healthcare Agency and worked on the CDC study, “but even the ones that do strictly comply to the testing within two weeks of filming, there’s always going to be a chance that they just got exposed to the virus and haven’t accumulated enough in their blood to have a positive test. There’s always a risk.”

Or, as Paula Tavrow of the UCLA Fielding School of Public Health put it: “testing for disease to prevent disease is like testing for pregnancy to prevent pregnancy.”

Concerns go beyond HIV. Public health officials and researchers point to elevated rates of other sexually transmitted diseases.

“I never saw so much chlamydia and gonorrhea in a population,” said Peter Kerndt, who oversaw the Los Angeles County Department of Public Health’s HIV epidemiology and sexually transmitted disease programs for 25 years.

California regulators believe current rules already compel condom use. Since 2004 the state has slapped the industry with 145 violations, 35 of them for exposure to blood-borne pathogens. In early March, Cal/OSHA levied a $77,875 fine on the production company of star performer James Deen for failing to use condoms, among other reasons.

But an effort to solidify the rule with a regulation explicitly requiring porn performers to wear protective barriers foundered. The proposal died before the Occupational Safety and Health Standards Board in February on a 3-2 vote, one short of what was needed for approval, with some members absent.

“I thought it was cut and dried,” said board Chairman David Thomas, who voted for the rule. He attributed the failure to the fact that “the whole adult film industry showed up and tried to make their case,” with several performers denouncing the idea. One warned that the restriction would eliminate unprotected climaxes that are “endemic to the industry” and can make a film a “prime seller.”

In fining Deen’s company, the state was acting on a complaint. The tip came from the same source as the proposed regulation, a 2012 Los Angeles County ballot measure requiring condom use, and the state ballot initiative: the AIDS Healthcare Foundation.

The organization and its divisive president, Michael Weinstein, stand at the center of the debate over safety in the adult film industry. The November ballot initiative continues Weinstein’s multiyear quest to mandate condoms in porn.

The Free Speech Coalition dismisses Weinstein’s effort as a cynical attempt to enrich himself by suing the industry for noncompliance. Weinstein’s critics depict a paternalist crusade to shame sex workers.

Some who have devoted their lives to combating HIV believe his mission will have more insidious consequences. By emphasizing condoms, they argue, Weinstein is discounting more effective forms of prevention. Weinstein’s opposition to a recently released preventive medicine called pre-exposure prophylaxis, hailed as a once-in-a-generation breakthrough, has angered many.

“Folks are really focused on increasing awareness and access to PrEP. AHF has not been on the same page as the rest of the community,” said Craig Pulsipher, state affairs specialist for AIDS Project Los Angeles. “Something that exclusively focuses on condoms is missing the mark.”

Given the relatively minuscule rate of publicly announced HIV-positive performers, skeptics say Weinstein’s time and money would be put to better use on communities ravaged by regular new infections and inadequate health care.

“Is there an epidemic of HIV transmission in this industry? I don’t think you can document that as true,” said Sen. Mark Leno, D-San Francisco, whose local Democratic Party branch passed a resolution opposing the measure. “This proposal is not science-based,” Leno added, “and I don’t believe it if enacted would have the intended effect of lowering HIV transmission.”

Weinstein called the idea that he’s out to make money “absurd,” saying he wants to aid a population that is otherwise ignored and to bring to account an industry that has “thumbed its nose at the regulations” on the books.

“They treat the performers as disposable,” Weinstein said. “Should we believe pornographers who are greedy and just looking to get an economic advantage?”

Economics drive some of the most pointed criticisms of Weinstein’s initiative. Industry insiders question whether Weinstein’s Measure B, a 2012 Los Angeles County ballot measure mandating condom use, has backfired by encouraging unregulated shoots or driving the film industry out of state.

FilmLA estimates it issued about 480 film permits to known adult production companies in 2012, before Measure B passed, and issued 40 adult film permits in 2013. An official state analysis pegged the damage of the initiative at tens to hundreds of millions of dollars and hundreds of jobs. The industry regularly trumpets warnings about California losing business and driving workers to dangerous underground shoots.

When the Legislature contemplated a bill to mandate condom use in 2014, Kink.com produced a video of its CEO traveling to Las Vegas to scout for new locations.

“We don’t want to move out of San Francisco,” said Kink.com spokesman Michael Stabile, “but should the ballot measure pass, we’re in a position to.”

When Lynn Comella, an associate professor of gender and sexuality at the University of Nevada, Las Vegas, went looking for a mass exodus after Measure B passed, she found scant evidence.

“Everybody I talked to both in Vegas and in L.A. – porn actresses, adult industry PR people – they all basically said this is completely overblown,” Comella said. “This is a well-crafted political strategy.”

Outside of the fiscal impact, opponents say legislating away lust cannot work. They say people will seek out condom-less porn and producers will provide it, either in California or elsewhere.

“The idea that we would moralize behaviors within the adult film industry is really anathema to us,” said James Loduca of the San Francisco AIDS Foundation, who called the condom mandate “one-dimensional” and Weinstein “out of step.”

David Holland, an infectious diseases expert at Emory University who submitted opposition to the Cal-OSHA proposal, drew a parallel to abstinence-only education he called a failure.

“We have never, ever in the history of mankind been able to control peoples’ sexuality,” Holland said. “You can tell people what you want – they’re going to do what they’re going to do anyway.”

Jeremy B. White: 916-326-5543, @CapitolAlert

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