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.
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.
Performer Testing… Is There a Hidden Agenda ?
I hate having to wear my tinfoil hat as one of my Twitter followers pointed out but sometimes it is necessary. Several days ago I posted an article about “Who Should Pay for Performer Testing.” Now I feel compelled to discuss what testing may or may not mean to those who actually control it.
Most industry members see testing as a profitable money making endeavor for whomever controls it. While others believe that those that control the test results can also control the release of information in case of a STI outbreak and might even be able to minimize potential legal liability. Some just see it as a “pissing contest” between several egos.
There is a third potential possibility as well. Many people are now starting to understand that information is worth money. Data mining is a big time business in this world. STI testing results are indeed worth money to the United States government as well as corporations developing new drugs for STIs.
If you follow me on Twitter you might have noticed that on August 9, 2012 I tweeted about how the National Institutes of Health offer grant money to study HIV screening and testing ( http://grants.nih.gov/grants/guide/pa-files/PA-11-118.html ) On Saturday, August 11, 2012, Talent Testing Service announced that they just formed a partnership with University of California, Los Angeles on a sexual health study ( http://business.avn.com/company-news/Talent-Testing-Service-Partners-with-UCLA-on-Sexual-Health-Study-485112.html ).
Performers wanting to receive a $40 gift card and free follow up STI medical care can participate in the study. Which essentially means that UCLA will have the right to their test results and medical care to use as part of their study – in essence a performer waives their right of privacy in so much that the information will could be sold. I am sure this information will be sanitized – meaning names will be removed since UCLA probably doesn’t care about a performer’s name or identifying information – rather UCLA cares about the empirical data – how often one tests, how often one catches an STI, the treatment received for such, how long the treatment lasted and how effective the results of the treatment were. That could be a data goldmine for a drug company trying to develop the next anti-biotic to fight any one of the many STIs on the planet.
How much can a group or organization receive for this type of information ? According to the link I posted to the National Institutes of Health’s grant overview information website, there is no limit. However if you want more than $500,000.00 you have to call the NIH directly. Apparently you cannot just email the application for a grant requests at that level.
I am not saying that Talent Testing Services received the grant themselves, however it does appear that UCLA has indeed received grant money for the study of STIs. The performers present a very unique situation in the world when it comes to STI research. I am going to bet that no where else in the United States does a group of people test for and possibly contract STIs as much as performers do in porn. And now that the testing cycle is being pushed to every 14 days, the amount of information is only going to increase and therefore the potential gold mine of data will increase in value as well.
As I tweeted, “there is gold in them thar HIV tests !”
The Condoms Have Arrived (Sort Of)
As you may remember from my article last summer for XBIZ World, I declared that the condoms were coming. That declaration was in reference to the position that Cal/OSHA had taken at the June 7, 2011, meeting in Los Angeles where a strong contingency of representatives of the industry turned out to battle their attempts to (further) mandate barrier protection use in the production of adult entertainment. It should be noted that technically, barrier protections are and have been mandated by California Code of Regulations, Title 8, Section 5193 for quite some time. However, the enforcement of such regulation has been spotty at best.
Based on the rather slow enactment of additional barrier protection regulation by Cal/OSHA, Michael Weinstein and the AIDS Healthcare Foundation decided to take their safe sex battle to a different receptive governing body, the Los Angeles City Council and Mayor Antonio Villaraigosa.
What Does The Act Require
On Jan. 23, Villaraigosa signed into law, the City of Los Angeles Safer Sex in the Adult Film Industry Act, hereby now requiring any production of adult content, within the limits of the City of Los Angeles, to use condoms for anal and vaginal sex while filming content involving penetration and ensuring that all ejaculate remains outside of a performer’s body. The act also requires all producers to be compliant with CCR Title 8, Section 5193, noted above.
Where Does The Act Apply (or doesn’t)
If you are not aware of the city limits of Los Angeles it may be easier to understand what cities the Act does not apply to. Remember this is a City of Los Angeles law and not a County of Los Angeles law. The Board of Supervisors of the County of Los Angeles has not (yet) adopted this law and therefore there are still numerous unincorporated cities in Los Angeles County where the act does not apply. Also, the act is not law within the 88 other incorporated cities in the County of Los Angeles.
For example Agoura Hills, Alhambra, Arcadia, Artesia, Avalon, Azusa, Baldwin Park, Bell, Bell Gardens, Bellflower, Beverly Hills, Bradbury, Burbank, Calabasas, Carson, Cerritos, Claremont, Commerce, Compton, Covina, Cudahy, Culver City, Diamond Bar, Downey, Duarte, El Monte, El Segundo, Gardena, Glendale, Glendora, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Huntington Park, Industry, Inglewood, Irwindale, La Cañada Flintridge, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lawndale, Lomita, Long Beach, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pasadena, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Fe Springs, Santa Monica, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Temple City, Torrance, Vernon, Walnut, West Covina, West Hollywood, Westlake Village and Whittier do not have a similar law mandating condoms as a condition to receive a film permit. However, two cities in Ventura County, Moorpark and Simi Valley, are contemplating passing similar municipal laws.
Also, the act does not apply to the 144 unincorporated areas of Los Angeles County. The act is not law in Ventura County or any other county in California, at the time this article was written.
The act is law only in the City of Los Angeles. However, it is the law and must be adhered to if a production is going to occur at a location that is within the City of Los Angeles. If a production is outside the limits of the City of Los Angeles, then the use of barrier protection is not a required condition to securing a permit.
Who Is Required to Secure a Permit for Production ?
If you are going to produce a commercial shoot in any of the following areas; the County of Los Angeles, the City of Los Angeles, Diamond Bar, City of Industry, Lancaster, Palmdale or Southgate you must apply for a receive a permit through a non-profit organization called FilmLA Inc. (FilmLA.com). Other cities may have their own permit process so it is imperative that you check with each city’s permit department and remain compliant with those laws. However, for purposes of this article we will focus on productions within the City of Los Angeles.
Without or without condom, it should be noted that shooting a commercial production within the City of Los Angeles without a permit is considered a misdemeanor.
Since the fall of 2009, Section 41.20 of the Los Angeles Municipal Code (LAMC) makes it a misdemeanor offense for production companies to film without a permit. Since the then, the LAPD’s Contract Services Section Film Unit has made arrests and filed charges against film producers for Section 41.20 violations. Under Section 41.20, an unpermitted producer’s equipment can also be confiscated until the time of the court hearing to insure that the producer appears at the court. Obviously, if the producer is renting equipment by the day this could end up being more costly that the fine itself for failing to secure a permit. Needless to say, failing to secure a permit can not only end in heavy costs and fines but also jail time since a misdemeanor offense is punishable by incarceration for up to one year in jail.
What Is a Commercial Shoot ?
Under the City of Los Angeles Planning and Zoning Code section 12.22(A)(13), which requires all producers to secure film permits, it is safe to assume that every adult production would be considered a commercial shoot and thus would require film permit, even it occurred in the producer’s own home. The one area that is still somewhat gray is whether a webcam production would require a permit. And taking the act one step further, would a webcam show involving penetration between a husband and wife for commercial purposes require a permit and, if it occurs within the City of Los Angeles, a condom to prevent the exchange of bodily fluids between two married and consenting adults? This is one area of the law that has yet to be defined.
Do Content Trades Now Require Condoms?
The short answer is yes. As you may remember from some of my earlier articles about the condom law I had indicated that any attempt by Cal/OSHA to impose condoms would not apply to content trades. Cal/OSHA is a regulatory body that only has power over employment practices. A true content trade between performers would not involve employment issues and therefore Cal/OSHA had no legal authority to enforce condoms be used in that regard. However, now that condoms are no longer tied to the issue of employment, but rather as a condition of receiving a film permit, even a content trade would be considered a commercial shoot. Condoms would therefore have to be used on any hardcore production within the City of Los Angeles. As I noted above, the Act is so far reaching even a married couple in the privacy of their own home performing on web cam together may need a permit and a condom to stay compliant of the law.
Enforcement of the Act
Over the past several weeks I have received numerous phone calls from agents, producers, directors and even performers as to how the act will be enforced. At the time of writing this article that question remains unresolved and unanswered. Since the act has been signed into law by Mayor Villaraigosa there has been discussion about forming a committee to decide how to enforce the act. Within the provisions of the act there is a language that allows the City of Los Angeles, through its contracted agency, FilmLA Inc., to charge additional fees to pay for “inspectors to ensure compliance with conditions on film permits.”
Without going into a full analysis of First Amendment law, the act may be subject to a future legal challenge based on the its lack of content neutrality. Meaning that the city should not be able to impose a tax, which is what these additional fees may in fact be, based solely on the adult nature of the productions. This is still an area of law that is in flux though.
For argument’s sake, let’s assume that the law is not challenged. The obvious question is how will the city ensure compliance? While it is not known at this point how compliance will occur, my assumption will be that it will follow the same path that the Los Angeles Police Department used to ensure permit compliance in the past.
In past years I had been called to set several times by several different clients where a “bust” by LAPD was occurring. Previously, the San Fernando Valley vice unit of LAPD was responsible for policing and enforcing the permit law in regards to adult productions. Then, towards the end of 2007 Mayor Villaraigosa started a special unit that would target unpermitted productions, mainstream and adult. This unit comprised of uniformed and plain clothes officers.
Often the LAPD permit enforcement unit would work closely with FilmLA Inc., and perform spot checks on known shoot locations. FilmLA Inc., would provide shoot location information to the unit and a patrol car would be sent to drive by the location to check to see if there was any abnormal activity at the location, meaning, if someone was shooting at that location on that day without a permit. If they suspected that someone was shooting they would knock and ask questions and in some instances, when no one answered and they would jump a fence and/or gate to investigate.
While it is impossible to say with certainty whether this will be the way to enforce the act, I would suspect that it may be. Others have talked about requiring a nurse to be on all permitted sets as well to ensure compliance. There have been rumors that the City of Los Angeles will subpoena information from the agents and producers to learn the usual (unpermitted) adult production shoot locations. I doubt that this will happen but it is certainly a possibility. This type information has been subpoenaed in the past by Cal/OSHA from talent agents in the industry.
Penalties for Failure to Use a Condom
The actual law does not contain any information as to the possible penalties for shooting adult content within the City of Los Angeles with a permit and without barrier protection. I am sure that the committee previously noted will be setting the penalties associated with the act. As for shooting without a permit, those penalties have been previously noted. At this time, I do not know if there will be an enhanced violation for shooting adult content without a permit and without a condom.
It is the opinion of this author that it is just simply too early to begin to panic over this law. It does not appear that the city has yet formed the committee to devise the manner of enforcement or the penalties associated with it. There has been discussions of a March 5 date that the law will be implemented.
Hopefully, by then there will be more information released by the City of Los Angeles. I have talked with numerous people in the industry about their desire to move to Las Vegas, Miami or Phoenix to produce. It’s not necessary to leave Los Angeles to produce. Just based on the geographical limitations of the law, it is rather easy to produce around it.
As more information becomes available I will update this article. This author hopes that by the time this article is in print, the City of Los Angeles will have promulgated rules on to how to comply with this new law and the penalties involved for violating it. In my next article I will discuss those issues as well as tips on how to avoid being found in violation of the act.
AdultBizLaw.com 