According to Maryn McKenna, author and expert on infectious diseases, gonorrhea is quickly approaching “Superbug” status. Meaning that there may not be a way to cure it in the near future.
Testing and Condoms: Straight Porn vs. Gay Porn
As I continue to research the issue of Ballot Measure B, the “Condoms in Porn” law, it became apparent that we have a divided industry. Actually it is more like two separate and distinct industries. We share common interests. We often share the same distribution channels and profit streams. There are now even companies that produce both gay and straight content ( ie., Naughty America-> http://www.suite703.com/ and Manwin-> http://www.men.com/ ). San Francisco and Los Angeles lie only 382 miles from each other but they might as well be on different coasts. When it comes to the issues of testing and condoms we could not be any more different or diametrically opposed.
The straight industry tests and doesn’t usually use condoms. The gay industry rarely tests and usually uses condoms, though in recent years even the use of condoms in gay porn is diminishing while testing is increasing. For performers in the gay community the issue of HIV status is treated as a closely guarded secret while in the straight industry test results are passed out like candy at a five year old’s birthday party.
In the straight industry if a performer is HIV+ there simply is no work for them. According to an article in Out Magazine, according to Michael Stabile, then Marketing Director for NakedSword.com, it was estimated that nearly 50% of all performers in gay porn are HIV+ ( Please see: http://www.out.com/entertainment/2007/07/23/baring-truth?page=0,1 ). A survey by TheSword.com of 100 gay male performers put that estimate closer to a 30% HIV+ rate (Please see: http://www.advocate.com/health/2009/08/12/business-pleasure?page=0,1 ).
Kent Taylor of Raging Stallion Studio claims;
“We don’t currently ask [about HIV status]. We assume everyone is [HIV-positive], and if they say they are not, we assume they are lying.”
Michael Lucas, owner of Lucas Entertainment, does not believe that HIV status should be discussed in polite circles ( Please see: http://www.advocate.com/politics/commentary/2011/09/27/oped-live-world-where-everyone-has-hiv )
“I’m in favor of a “don’t ask, don’t tell” policy. Not in the military, of course — those days are behind us — but in the bedroom. What I’m talking about, specifically, is HIV. And my point is that, at least when it comes to sex, we should talk about it less.”
So in gay porn it is a matter of not testing and/or not sharing of HIV status and just simply using a condom to protect the performers. However, do condoms really protect the performers ? Does less than complete adherence to condom use even in a performer’s private sexual life keep them safe ? According to Stabile ( Please see: http://www.out.com/entertainment/2007/07/23/baring-truth?page=0,1 );
I’ve talked to some of them [gay male performers], and they say, ‘The only time I ever have sex with a condom is on-screen.’
Therefore, if some gay performers are only using condoms on set and not in their personal lives and not testing, it is impossible to know actually how many HIV transmissions are occurring on gay sets. Michael Weinstein of the AIDS Healthcare Foundation is not concerned with performer health and safety in the gay industry because according to a statement he made to this author at a September 17, 2012 press conference “the majority of gay porn is made with condoms.” His belief is that condoms protect.
This opinion is echoed by Michael Lucas;
“In fact, it’s hard to get HIV even from sex — as long as you use a condom. I dated a positive guy for two years in the 1990s; we had safe sex almost every day, and I never seroconverted. Today, it is even more difficult to become infected through protected sex. Recent studies suggest that HIV-positive men who are taking their medications pose a vastly reduced risk of transmitting the virus.”
Obviously there is a school of thought in the gay porn production community that test results do not really mean much if you are using a condom. Most gay studios only use condoms for anal sex. Rarely are they used for oral sex. Condoms may protect from HIV but they do not protect from oral chlamydia, gonorrhea, HPV and herpes if they are not being used. How many gay performers have contracted chlamydia, gonnorhea and HPV of the throat or herpes simplex 2 around their mouths ? Without testing there is simply no way to know. And therefore Michael Weinstein’s belief that gay performers are some how better protected from STIs because they use a condom for anal sex is terribly flawed logic.
In straight porn there is almost no one that will work with a known HIV+ positive performer with or without a condom. Matter of fact, the way the FSC/APHSS testing system works is to flag a performer that tests positive for HIV. The database will indicate that they are not cleared to work. At that point the straight industry would undergo a complete shut down of production until a full tree of potential exposures could be established and all performers that had been exposed re-tested. Any positive performers would then be re-tested again to confirm their status. This is a completely different from the gay industry that almost assumes all performers are HIV+.
According to many producers in straight porn, mandatory condoms would decimate the industry in Los Angeles. According to producers in gay porn, mandatory testing would decimate the industry in San Francisco ( Please see: http://www.advocate.com/health/2009/08/12/business-pleasure?page=0,1 ).
So how does an industry divided rectify this situation and come together to be united ? Can that even be achieved ? Can there be common ground reached to ensure profits while maintaining worker safety and participation ? The issues of government mandated condoms or industry mandated testing must be discussed openly. As more performers cross in-between both sides of the industry this topic will only become more heated and divisive if not handled properly.
More Condom Facts: Latex Allergies Can Kill…
One of the most troublesome aspects of the condom use in the adult industry is the possibility of a performer developing a latex allergy. When some people hear the word allergy they think running nose, itchy eyes and some mild discomfort. However, an allergic reaction to latex, especially latex gloves and/or condoms is a much more serious allergy then just that. Quite honestly an allergic reaction to latex condoms/gloves can cause shock and even death. There are no studies pertaining to just latex condoms. The following article is based on exposure to latex and health care employees that wear latex gloves to prevent exposure to blood borne pathogens. However, certain parallels may be drawn.
The issue is so serious that OSHA has developed a Bulletin about exposure to latex ( Please see: http://www.osha.gov/dts/shib/shib012808.html ). Currently there are no federal regulations concerning latex gloves or condoms however twenty-five states, Puerto Rico and the Virgin Islands have all developed their own standards and enforcement policies for latex exposure.
Who is Allergic to Latex…
According to OSHA;
“With more widespread use of NRL (natural rubber latex) gloves after 1987 there was an increase in reported NRL sensitization and allergic reactions among patients and among employees, notably health care employees. In rare cases, these allergic reactions can be fatal…The majority of health care employees are able to use NRL products to care for most patients. However, some employees may develop sensitivity to NRL upon repeated exposure.”
An allergic reaction to latex condoms is actually something that can develop over time. A particular person may not be sensitive to latex at first but through prolonged and repeated exposures they may actually become seropositive for anti-latex antibodies. More disturbing is that it is currently impossible to determine who may or may not become allergic over time. According to OSHA;
“It is not possible, at present, to determine which employees will become sensitized or symptomatic on exposure to NRL allergenic proteins. Moreover, the extent of an individual employee’s reaction, or the length of time required for such allergic reactions to develop in a sensitized employee, cannot be ascertained. Finally, it is not possible, at present, to predict which individuals will progress from sensitization or from local contact urticaria to more dangerous allergic reactions, nor when this progression may occur.”
Typically, 1-17% of the population is sensitive to latex. Not surprisingly those that are exposed to latex on a regular and repeated basis, tend to be in the high range while the general population are in the lower range. Sensitivity has been found in;
“Health care employees particularly affected include operating room personnel, dental patient care staff, special-procedure and general-medical nurses, laboratory technicians, and hospital housekeeping personnel consistently exposed to NRL. NRL sensitization or allergic response or reaction has also been reported in greenhouse employees, hairdressers,doll manufacturing employees, and employees in a glove manufacturing plant.”
If condom use increases in the adult industry I am sure that “adult performer” will be added to the list of employees noted above. Based on the several studies it would be safe to assume that between 1-17% of all performers may develop a latex sensitivity from repeated condom use. Assuming there are 1500 performers that currently work in Los Angeles adult industry this condition could affect anywhere between 15 to 255 of the current performers (Please see: http://www.latexallergyresources.org/statistics ).
Symptoms of Latex Allergy/Sensitivity…
If someone is allergic to latex what are the symptoms that one can expect to experience ? OSHA has defined reactions into three categories;
“These categories include reactions that vary from localized redness and rash; to nasal, sinus, and eye symptoms; to asthmatic manifestations, including cough, wheeze, shortness of breath, and chest tightness; to in some cases, severe systemic reactions with swelling of the face, lips, and airways that may progress rapidly to shock and, potentially, death.”
The most basic reaction is contact dermatitis which OSHA describes as;
“The allergic contact dermatitis has an appearance similar to the typical poison ivy reaction, with blistering, itching, crusting, oozing lesions. Also, like poison ivy, this dermatitis appears 24-72 hours after the use of gloves or exposure to other sources of chemical sensitizers.”
Obviously, having blistering, oozing and itchy lesions on an adult performer’s genitals is something that doesn’t inspire thoughts of sexiness. And of course those performers will lose considerable income even waiting for the lesions to heal before trying to work again. However, the more important aspect to this issue is the very real potential thread of shock or even death within minutes;
“A type I reaction can occur within seconds to minutes of exposure to the allergen (in the case of NRL, to allergenic natural rubber proteins), either by touching a product with the allergen (e.g., gloves) or by inhaling the allergen (e.g., powder to which natural rubber proteins from gloves have adsorbed). When such a reaction begins in highly sensitive individuals, it can progress rapidly from swelling of the lips and airways to shortness of breath, and may progress to shock and death, sometimes within minutes.”
It is imperative that anyone in the sex worker community, not just those that perform in adult entertainment, be aware of latex sensitivity and allergies. I strongly recommend that everyone reading this article do their own research and talk to their own healthcare professional.
A great start place is at the website of the American Latex Allergy Association ( Please see: http://www.latexallergyresources.org/ ). I would also recommend visiting the U.S. Department of Labor’s website as well ( Please see: http://www.osha.gov/SLTC/latexallergy/index.html ).
There are options to using latex condoms. Non latex condoms are manufactured for those that are either allergic or have developed a sensitivity to latex. However, it should be noted that lambskin condoms do not contain latex but they are ineffective for stopping the transmission of the HIV virus. A non-latex Polyurethane condom must be used.
Can the HIV Virus Pass Right Through Latex Condoms ?
In my research on whether condoms contain the cancer causing chemical Nitrosamines I also stumbled upon other interesting facts about condoms. The most interesting came from the June 1993 Rubber World Magazine ( http://www.rubberworld.com/ ). Rubber World Magazine is the rubber industry’s technical trade magazine. The author of the article is Dr. C.M. Roland, Head of Polymer Physics Naval Research Laboratory. Here is his brief bio;
Biographical Sketch: Mike Roland is a physical chemist and head of the Polymer Physics Section at the Naval Research Laboratory. His research interests are the mechanical and viscoelastic properties of materials. He received his PhD in chemistry from the Pennsylvania State University in 1980, and prior to joining NRL in 1986 was a group leader at the Firestone Central Research Laboratories in Akron, OH. From 1991 to 1999 he edited the American Chemical Society journal “Rubber Chemistry & Technology”, and currently is on the editorial board of “Macromolecules”. His awards include the Sparks-Thomas Award (ACS) in 1991, Edison Award (NRL) in 2000, Melvin Mooney Award (ACS) in 2002, Sigma Xi Award for Pure Science (NRL) in 2002, and he became a Fellow of the Institute of Materials, Minerals, and Mining (UK) in 2008. He has authored over 300 publications and holds 13 patents.
Dr. Roland’s has stated that latex condoms are actually ineffective in stopping the spread of the HIV virus. His research showed that latex condoms, on the molecular level, have holes in them that are simply too large to stop the HIV virus from passing through the latex membrane.
I suggest that everyone reading this article read his article in its entirety. You can find it here -> http://www.thefreelibrary.com/The+barrier+performance+of+latex+rubber.-a014089514. I will quote some of the more important facts from his article.
Dr. Roland states;
“The defining feature of viruses is their diminutive size; electron microscopy reveals the AIDS virus to be only 100 to 120 nm (0.1 micron) in size. This is consistent with their passage through polycarbonate filters with holes in the 0.1 to 0.2 [Micro]m range. The size of HIV is 60 times smaller than the bacteria causing syphilis and 450 times smaller than human sperm… Clearly, the use of a condom or rubber glove for barrier protection from a virus represents a different problem from that of preventing bacterial infection or conception.”
Condoms were developed to prevent pregnancy. They have also proven to be useful in preventing certain bacterial sexually transmitted disease such as gonorrhea, chlamydia and syphilis. However, according to Dr. Roland, based on the extremely small size of the HIV virus – latex condoms are not completely effective to prevent the spread of the HIV virus.
Roland goes on to state that the “water-leakage” test used by many condom manufacturers is simply not suitable to test for HIV transmission rates through the latex membrane. Basically HIV is smaller then even water molecules, Roland states;
“These results indicate that the water leakage test is not adequate for the detection of the small holes relevant for viral transmission. This was directly demonstrated in a study of the ability of latex condoms to prevent passage of fluorescence labeled polystyrene microspheres, 110 nm in diameter (i.e., equivalent in size to the AIDS virus). One-third of the condoms, none of which contained holes large enough to be rejected by the water leakage test, allowed passage of the microspheres, with fluid flow rates lying in the range of 0.4 to 1.6 nanoliters per second.”
He based his opinion on the findings of a 1992 condom research study performed by the FDA. Physical science researchers tested the ability of 89 undamaged latex condoms manufactured in the US to prevent passage of HIV size particles under simulated physiologic conditions at their Food and Drug Administration laboratory in Rockville, Maryland. You can read an abstract of their research here -> http://www.ncbi.nlm.nih.gov/pubmed/1411838
Here’s is what the FDA found;
“Leakage of HIV-sized particles through latex condoms was detectable for as many as 29 of the 89 condoms tested. Worst-case condom barrier effectiveness (fluid transfer prevention), however, is shown to be at least 10 times better than not using a condom at all, suggesting that condom use substantially reduces but does not eliminate the risk of HIV transmission.”
These findings have nothing to do with whether the condom was properly used. These test results only speak to whether the condom itself has holes in it large enough to allow the HIV virus to pass through it. Obviously, not properly using a condom, as well as breakage and slippage will only increase its ineffectiveness.
Before anyone throws anything at their screen in anger allow me to discuss the National Institute of Health’s condom effectiveness study released in July of 2001. To address the questions raised by Roland and other researchers, the NIH held a conference in June 2000 where this issue was investigated further. The report was limited to evaluating the effectiveness of male latex condoms used during penile-vaginal intercourse. It examined evidence on eight STIs—HIV, gonorrhea, chlamydia, syphilis, chancroid, trichomoniasis, genital herpes and genital human papillomavirus. The data presented in the report found that male latex condoms are effective in preventing the most serious STI (HIV), the most easily transmitted STIs (gonorrhea and chlamydia) and another important sexually transmitted condition (unplanned pregnancy).
However, the NIH report only stoked the fires of additional debate as to the effectiveness of the male condom to prevent the transmission of STDs. Many attacked the report on political as well as scientific basis.
None the less, no matter what side of the “condoms in porn” debate you may be on the facts are relatively clear. Condoms help in preventing the transmission of HIV but are not 100% effective in the complete prevention of HIV transmission.
One study of heterosexual couples by Department of Preventive Medicine and Community Health of the University of Texas found that in cases were one partner was HIV+ and the other was HIV-, a condom’s effectiveness;
“at preventing HIV transmission is estimated to be 87%, but it may vary between 60% and 96%.”
(Please see http://www.ncbi.nlm.nih.gov/pubmed/10614517 )
I strongly suggest that everyone do their own research as to this topic. There are many competing voices and view points. Please educate and decide for yourself.
Returning to Work ? Somethings You Should Know…
September 3, 2012, Labor Day, ironically, is the day that the FSC/APHSS has determined to be the best day to return adult performers to a regular production schedule, a mere 10 days after receiving a prophylactic antibiotic shot to hopefully cure the syphilis outbreak in the industry. Now that the moratorium on production has been lifted, be safe and here’s some facts that you should know before you head off to set;
- There are 9 performers in adult confirmed positive for syphilis as of today;
- Syphilis may take up to 90 days to detect through testing with the average range being 21 days;
- Once you test positive for syphilis you may always test positive for syphilis;
- If you are receiving your test results through APHSS you may not know that you are working with another performer that previously tested positive for syphilis – the APHSS database only tells you whether someone is “cleared” to work;
- There is a disagreement between APHSS and TTS as to the proper test to use to detect syphilis;
- APHSS states that their required and mandatory re-test can detect syphilis at 14 days while TTS states two tests are necessary to detect it this quickly.
- Only 300 performers opted to take the antibiotic shot;
- Despite the moratorium on production, there were some production companies and agents that continued to book scenes;
- Some performers continued to escort during the moratorium;
- Condoms may not protect you from catching or spreading syphilis;
- Treatment for syphilis may make birth control pills ineffective;
- Often those with syphilis do not show any symptoms of the disease;
- In the primary and secondary stages syphilis is very contagious;
- If a performer’s off camera sex partner(s) were not treated it is possible to reinfect those that were treated;
- An antibiotic shot is not a vaccine and a performer can be reinfected quite easily;
- If you catch syphilis, receive treatment and then get reinfected it will require 1 shot a week for 3 weeks to cure it;
- Having an open syphilis sore makes it 2 to 5 times more likely that you can transmit/contract HIV during sex.
If there are any facts I have let off this list please feel free to add a comment to this article and I will add them to the list.
Emails, Databases and Doctors – Are We Doing it Right ?
This article is a continuation of my examination of the testing facilities utilized by the adult industry to check for the presence of sexually transmitted diseases. There is a little known but albeit interesting law in California that should be of special interests to those in the adult industry for two reasons. First, California Health and Safety Code section 123148 requires that a “health care professional” who orders a laboratory test for sexually transmitted diseases “shall” provide those results to the patient. Further, test results for HIV antibodies cannot be provided to the patient by the healthcare professional by the Internet or other electronic means. The statute reads in relevant part;
123148. (a) Notwithstanding any other provision of law, a health care professional at whose request a test is performed shall provide or arrange for the provision of the results of a clinical laboratory test to the patient who is the subject of the test if so requested by the patient, in oral or written form. The results shall be conveyed in plain language and in oral or written form, except the results may be conveyed in electronic form if requested by the patient and if deemed most appropriate by the health care professional who requested the test...
(f) Notwithstanding subdivisions (a) and (b), none of the following clinical laboratory test results and any other related results shall be conveyed to a patient by Internet posting or other electronic means: (1) HIV antibody test. (2) Presence of antigens indicating a hepatitis infection. (3) Abusing the use of drugs. (4) Test results related to routinely processed tissues, including skin biopsies, Pap smear tests, products of conception, and bone marrow aspirations for morphological evaluation, if they reveal a malignancy.
These two paragraphs have serious implications as to how the industry currently handles testing as well as how that information is shared with a performer. The first paragraph requires that only a physician or other “health care professional” order the testing for the sexually transmitted disease panel since only the physician or other “health care professional” can share the tests results with the patient. Also, if those test results include an HIV antibody test those results cannot be shared via the Internet on a database, by email or even through a phone call. You read that correctly. Test results cannot even be shared with a patient via a phone call. At this point you may be saying that I must be crazy – all doctors share those results by phone. Except that there is a current bill in the California Legislature to correct that problem with the original law. It is referred to as Assembly Bill 2253 and so far it appears to have bipartisan support in the Legislature but as yet to become law. ( See http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_2253&sess=1112&house=A )
Here is a summary of the bill from MapLight California (See http://maplight.org/california/bill/2011-ab-2253/1069303/history )
Existing law authorizes the results of a clinical laboratory test performed at the request of a health care professional to be conveyed to the patient in electronic form if requested by the patient and if deemed most appropriate by the health care professional, except that existing law prohibits the conveyance by Internet posting or other electronic means of test results relating to HIV antibodies, the presence of hepatitis antigens, and the abuse of drugs, and specified test results that reveal a malignancy.
This bill would revise these provisions to refer to the disclosure of test results, would provide that the telephone is not a form of electronic communication, and would authorize the disclosure by Internet posting or other electronic means of clinical laboratory test results related to HIV antibodies, the presence of hepatitis antigens, and the abuse of drugs, and specified test results that reveal a malignancy if requested by the patient, the means of conveyance is deemed appropriate by the health care professional, and a health care professional has already discussed the results with the patient.
Obviously, if a bill is needed to make it legal for a doctor to tell you whether you have or don’t have HIV on the phone, it is still very much illegal to provide that information to you via email, a database or anything sent to your phone. Currently, it appears that only a “health care professional” can tell you in person what the results of your HIV test is. Some veteran performers may remember when testing started in the industry they had to wait for the results in the testing center in Venice, California. This was even prior to the establishment of the Adult Industry Medical clinic.
If you are now being “sent” your test results by the doctor or the lab that is not allowed under California Health and Safety Code section 123148 (See http://www.mbc.ca.gov/consumer/complaint_info_questions_practice.html#18 ). Further, even with the patient’s agreement the prohibition against sharing test results electronically is NOT allowed. A performer cannot even waive this provision of California law.
So who is a “health care professional” and does a performer actually need to be examined prior to having a test ordered or can a performer simply walk into a clinic and request a test. This is where the laws surrounding HIV testing are not quite clear. And the laws are different in regards to public free testing sponsored by a county or state health department as compared to private medical testing. It is not clear whether a full examination is required. However, it does appear that a performer themselves cannot order a test from a laboratory. That order must be placed by a health care professional.
Based on everything I have read it appears that only a “licensed health care professional” licensed under California’s Professions and Business codes can order an STD test from the lab. Obviously it would be lawful for a physician licensed in the state of California to order such a test. However, what about Nurse Practitioners, Physician’s Assistants and other medical personnel you might encounter in a testing facility ? Nurse Practitioners and Physician’s Assistants are licensed by the state of California so it seems that they can order STD testing. Can front desk clerks and other non-licensed staff order STD tests – the answer is probably not.
At this point in time it appears that the way tests results are ordered and provided to performers within the adult industry may not be in line with current California law. If Assembly Bill 2253 finally passes and is signed into law by the Governor of California we will be one step closer to being compliant with that change in the current law.
If you would like to learn more about laws pertaining to HIV and the testing for such in California please download this guide from the state of California -> http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=25&cad=rja&ved=0CGQQFjAEOBQ&url=http%3A%2F%2Fwww.cdph.ca.gov%2Fprograms%2Faids%2FDocuments%2FRPT2007-06-14-2849-2006AIDSLAWS.pdf&ei=LN48UMDIK8iz8AHtvYGoCw&usg=AFQjCNH63w71vDufrICv3mYyvdYKVm34Kw&sig2=ZGP8YZWMEBLk-WT1cM9ebw
Is There a Hole in APHSS ?
The syphilis outbreak in the adult industry has brought to the forefront a highly contested debate as to testing for sexually transmitted diseases. Currently there is a debate as to whether there should be one testing facility or multiple facilities. There is also a debate as to what the proper protocols should be for informing performers and their sex partners of a possible outbreak. There is yet another debate as to whether what exactly should a performer know about his/her costar on set in regards to their medical history.
Background…
The main players in this debate are the testing facilities under the umbrella known as the Adult Production Health & Safety Service (APHSS https://aphss.org/ ). APHSS is the brainchild of the Free Speech Coalition (FSC http://www.freespeechcoalition.com/ ) and several major content production studios that openly support the FSC, most notably Manwin, Evil Angel, Kink.com, Girlfriend Films, Gamma Entertainment and Vivid Entertainment. One of those APHSS testing facilities is Cutting Edge Testing, which is owned and operated by Dr. Miao, and is one of the main testing facilities in Los Angeles for the industry. (CET http://cuttingedgetesting.com/ ).
On the other side of the equation is Talent Testing Services (TTS http://www.talenttestingservice.com/ ), a testing laboratory not a medical clinic, which appears to be supported by LATATA ( http://latata.org/ ). The Licensed Adult Talent Agency Trade Association is comprised of several of the licensed and bonded adult talent agents within the United States. Further, TTS is not part of the APHSS system and it appears does not wish to be. TTS is not a medical facility it is a laboratory that performs testing for sexually transmitted diseases.
APHSS’s inception is rather recent, only occurring after Adult Industry Medical (AIM) closed and filed for bankruptcy within the last year. TTS has been in operation for several years.
As for adult performers, they seem to be split as to which testing facility they prefer. Some prefer CET and the APHSS system while others prefer TTS.
Medical History within the APHSS Database…
Without getting into extreme detail as to either service or all that either service offers, since that would require pages of analysis, I would like to confine my discussion to one potential problem with the APHSS database I have been made aware of by seasoned veteran performers.
Since I prefaced this article with the words “hotly debated” let me state this for my readers. I do not have a financial interest in either testing facility. I do not have a preference as to either testing facility. I am not a performer nor a producer and therefore do not have a “dog in this hunt” so to speak. I am neutral as to both facilities so please do not attack me believing this article is merely an attack on APHSS. It is not. It is merely meant to inform and educate based on a potential issue I see with the way medical history is handled in the APHSS system. My goal is that this issue can be resolved and the database improved for the health, safety and knowledge of the talent.
After a discussion on Twitter with Fabian Thylmann it became apparent to this writer that there is a potential hole in the APHSS database as to the past medical history of performers. I have come to this understanding after the conversation with Fabian Thylmann as well as personally attending the APHSS presentation in July conducted by the FSC and Dr. Maio. I will limit my discussion to just one issue. That issue is how past medical history is handled by APHSS.
From my understanding the performers in the APHSS database will be either “cleared” or “not cleared” to work under the APHSS database and call in system. Which means that only the most recent test results will be available to be reported and only in the way proscribed. Which, for legal purposes, is a good idea with the issue of medical privacy being important to so many. As a lawyer, I like the APHSS database. It leaves little room for violation of medical privacy.
However, from my discussions with some veteran performers it appears that there are a contingent of them that would like to know more about their on-screen partner’s medical history, including whether they have tested for syphilis in the past. While normally I would disagree with that position as for chlamydia and gonorrhea I do see that information as being important for syphilis. Syphilis is an infection that can be easily cured but may always result in some level of a positive finding on a sexual transmitted disease test result, depending on the test used. (Please see http://www2a.cdc.gov/stdtraining/self-study/syphilis/syphilis10.asp ). Therefore, I can certainly see a performer’s right to make an informed decision. While medically it may be impossible to transmit the disease once a performer as undergone treatment some performers feel as though that they would like to know that information prior to performing in a scene with previously positive performer. A balance between privacy and informed decisions must be made.
From what I was told by Fabian Thylmann of Manwin, a performer who has tested positive for syphilis will be cleared for work within the APHSS database once they have been examined and cleared by an APHSS physician. Therefore, while we do not know at this time who besides Mr. Marcus may have it, based on Fabian Thylmann’s statement it is possible that at some future point a performer that had syphilis and received treatment will be actively performing again. With this potential hole in the APHSS system anyone working with that performer would not even know about the past positive history for syphilis.
While this might not present much stress for some performers it may for others. I discussed this issue with a male performer that indicated that he did not believe that working with a performer who had previously tested positive for syphilis but is now cured posed much of a risk. However, he did indicate that information would be desirable in order to make an informed decision. Performers should be able to assess risk and balance such concerns themselves.
I had suggested to Fabian Thylmann of Manwin that the APHSS database be changed so that it would instead read “cleared for work” however with a notation. That notation in the database could be an indication that the other performer may have tested positive for syphilis within the last 30, 60, 90 or 180 days depending on long ago the past the positive test occurred. That may allow a performer to make a more informed decision as to who their screen partners will be.
This hole in the database may also become more important in the future if testing is going to expand past the basic HIV, chlamydia, gonorrhea and now syphilis panel. If the industry adds herpes, hepatitis and human papillomavirus to the regular testing panel how is the APHSS database set up to handle those types of results. Are all performers that test positive for herpes going to be “cleared to work” without a notation that they carry the virus ? As with syphilis is an APHSS doctor going to examine them for the presence of an outbreak before clearing the performer to work ? How often will this exam be necessary ?
Will there be a notation in the APHSS database for those performers that have had a hepatitis B vaccination ? Will a performer know if they are working with someone else who has been vaccinated ?
Since this database is being touted as the database for the entire industry, lets not forget the gay side of production as well. There are gay production companies that allow HIV positive performers to work with other HIV positive performers as well as HIV negative performers ( See http://www.insidesocal.com/outinthe562/2010/11/hiv-positive-gay-porn-actor-signs-exclusive-contract.html ). Some of those studios even match performers with different strains of HIV together. How would this particular situation be handled by the APHSS database and call in system ? Would an HIV positive performer working for a gay production studio “not be cleared for work” or would they. Would a notation be required on that performer’s database file ? Or is APHSS simply not going to allow gay performers and production companies into their database ? That cannot be possible since APHSS has under it’s umbrella of testing facilities a clinic located in San Francisco. There are also straight porn production companies such as Naughty America that are now also producing gay content ( See http://queermenow.net/blog/naughty-america-presents-3-new-gay-porn-sites/ )
Needless to say, the syphilis outbreak has caused numerous questions to be asked in regards to the current state of testing and performer health and safety as well as the mandatory use of condoms now required by state law and Los Angeles city ordinance. Without doubt this issue will continue to be debated, lines will be drawn and sides will be taken. Let us not forget those in the middle of the fire, the performers who risk their health every time they step on set to perform.
Knowledge is power. If you believe I am mistaken in the way medical history will be handled by the APHSS database I invite you to post a comment. Any inaccuracies will be corrected.
Who Should Pay for Performer Testing ?
On July 24, 2012, Manwin the owner of membership websites known as Brazzers and Mofos and tubesites such as YouPorn, PornHub, and Tube8 made an announcement that they would donate $50,000.00 per month to create a “Performer Subsidy Fund” to reimburse performers for the cost of testing in the adult industry (See story here).
This fund would be administered by the Free Speech Coalition through their APHSS program. Basically, Manwin stated that they would reimburse all performers the costs of their tests within a given month up to $50,000.00, whether those tests were for Manwin productions or not. Manwin also called for other production companies to join with them in their generosity and also donate to the fund. They further donated a total of $35,000.00 to FSC/APHSS to administer the fund. However, they did place a time limit on the program indicating that the program would only run through the end of 2012. At which point it would be re-evaluated to determine if it would be continued into 2013.
Many people within the industry pointed out that this was a very generous, albeit suspicious offer from Manwin. There is a general opinion within the industry that Manwin, through their tubesites, was a direct contributor to the economic downfall of porn production. Why now would they voluntarily come forward and support performers to reimburse testing costs ? Some people even opined that they believed this was Manwin’s attempt to take over medical testing procedures in the industry.
However I think the answer can be found in California Labor Code section 222.5 which reads in relevant part;
“No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.”
In short, employees in California cannot be made to pay for pre-employment medical testing, which is exactly what the STD testing is within the adult content production business – a pre-employment test. Without a clean test no production company will or should hire a performer to perform in an adult production.
I realize that many performers in adult do not and refuse to consider themselves employees. Rather they wish, for whatever reason, to be called independent contractors. I can assure anyone reading this article that performers, for purposes of worker safety laws, are indeed employees and not independent contractors. Perhaps for tax purposes they may be independent contractors. It is possible to be an employee for worker safety laws but yet be an independent contractor for tax purposes.
Further, on January 1, 2012 additional laws went into effect in California making the “willfull misclassification” of employees as independent contractors even more dangerous for employers. Labor Code Section 226.8 imposes significant penalties ranging from a minimum of $5,000 to $25,000 for “each violation.” The civil penalties for one misclassified individual could be tens of thousands of dollars depending on the interpretation of “each violation” and the penalty imposed. Obviously, if Manwin does not take remedial steps to comply with California law in regards to the classification of employees they may face significant penalties as well as potential lawsuits under California’s Private Attorney General Act, which allows individuals to file lawsuits to enforce California law.
It is this author’s opinion that Manwin is starting to realize that the performers are indeed employees and are taking steps to comply with California law. Obviously, they are trying to set a precedent with the reimbursement of testing costs, however they still fall short of actual compliance with Labor Code section 222.5. Since the “Performer Subsidy Fund” requires a performer to sign up for the program instead of Manwin paying for the pre-employment testing outright.
None-the-less, Manwin is taking a step in the right direction when it comes to the treatment of performers, however, it is only a half step. At some point all production companies will have to address not only peformers’ testing costs but also the issue of workers’ compensation for on-set injuries.
If you would like to read more on the issue of workers’ compensation and porn production here is a two part interview I did for XBiz Magazine in 2007 … Part I and Part II
In future posts I will be covering the issue of workers’ compensation insurance and its application to porn production sets further.
AdultBizLaw.com 