HIV and Porn: If You Like it Then You Should Have Put a Rubber on It

By: Beirne Roose-Snyder, CHLP Staff Attorney

In October 2010, a porn actor, now identified as Derrick Burts, tested positive for HIV. The news cycle responded as it often does- with alarm and hand-wringing, and with some discussion of "AIDS activists" who are lobbying California to make condoms mandatory in porn. But the reaction to a porn actor testing positive for HIV raises bigger questions about HIV prevention, testing, sexual health and about the porn industry itself. What is the relationship between HIV and the adult film industry? Who regulates the industry and how? And should this singular HIV positive test result be the catalyst for major change?

By: Beirne Roose-Snyder, CHLP Staff Attorney

In October 2010, a porn actor, now identified as Derrick Burts, tested positive for HIV. The news cycle responded as it often does- with alarm and hand-wringing, and with some discussion of "AIDS activists" who are lobbying California to make condoms mandatory in porn. At the end of the investigation that shut down production in the porn industry for weeks, no other actors tested positive for HIV and the story no longer made headlines.

But the reaction to a porn actor testing positive for HIV raises bigger questions about HIV prevention, testing, sexual health and about the porn industry itself. What is the relationship between HIV and the adult film industry? Who regulates the industry and how? And should this singular HIV positive test result be the catalyst for major change?

The facts and issues surrounding the sexual health of adult film stars, and industry regulation about sexual health, is more complicated than the news stories surrounding it make it appear. Regulations about STI/HIV testing and condom use vary based on whether the focus is the straight or the gay industry. Repercussions for HIV positive performers are influenced by which industry they perform in and what studio bosses mandate. But now there is a cross-over of actors working in both gay and straight porn – leading to a host of questions about the future of how the porn industry addresses the health and privacy of its actors.

Since allegedly straight male porn star, Darren James, tested positive for HIV in 2004, along with three female performers with whom he had worked, the Los Angeles County public health department says about eight performers have tested positive for HIV. The most recent case is that of Burts, though there is no clarity as to whether these performers contracted HIV while performing or whether they were infected in their private lives.

These cases illustrate the downsides to relying wholly on testing. While the straight industry relies on HIV antibody tests, there always will be some window period, typically several weeks, between when a person is infected and when they test positive for antibodies. And in the case of porn, a person may had have sex with many partners within that period, potentially exposing them to HIV. With no way, or right, to control what performers do in their personal lives, the industry can perhaps loosely reduce, but not eliminate, potential HIV exposure through testing.

The relationship between porn and HIV prevention is an interesting one. Eighty percent of American porn is filmed in California, which makes it the epicenter for any discussion about porn and HIV. The porn industry in California that is intertwined with this discussion is, for the most part, considered the mainstream porn industry. These are large studios, filming many adult films simultaneously. Within this California industry, there is the straight porn industry and the gay (male) porn industry, and they currently have dueling HIV prevention schemes. The gay, mainstream studio porn industry works under a mandatory condom regime. The straight industry works under a mandatory testing regime, where performers are tested monthly at the Adult Industry Medical (AIM) Healthcare clinic, which caters exclusively to the industry and sex workers. Performers take a HIV/PCR DNA qualitative test, typically finding HIV between 10 and 14 days after exposure. AIM also keeps a record of all porn workers whom they test that allow producers to check on the status of their performers and records on-screen partners, which makes tracking potential infections easier, even as it raises considerable medical privacy concerns. (Although the LA Times reported today that AIM has been shut down for "poor follow-up," clinic operators insist they will continue through mobile testing operations.)

The legal landscape convolutes the situation even more. California state labor laws do require employers to protect their employees from exposure to blood-borne pathogens, which include HIV, and state OSHA officials maintain that condoms are already required under the law. But the straight porn industry maintains that it can self-police and provide sufficient protection for its workers, and enforcement by the state and county governments has been extremely rare and inconsistent. Self-policing in the industry is not legally sufficient, nor is it foolproof: an actress who tested positive last year apparently made a film with an expired test result in the brief window between being tested and receiving her diagnosis, and the most recent positive result seems to have taken place with perfect compliance to the system.

Many in the mainstream gay porn industry, in response to pressure from the AIDS activist community and some performers, have been using condoms for years. There is a subset of barebacking porn that continues to raise concern from public health officials and industry watchers, but the majority of performers in the big studios are using condoms. It is widely known that there are some HIV- positive gay porn performers.

So there are the two dueling HIV regimes in the mainstream porn industries. One is about prevention on a "front door," individual level (condoms) and one is about "back door" prevention, which allows performers to continue to take STI and HIV infection risks and then sidelines those for whom the risk-taking goes wrong (testing ). And of course, these dueling approaches raise additional issues because of the real world overlap between performers in the gay and straight industries.

The "AIDS activists" cited in news stories generally have a clear stance on what the resolution of these questions should be. According to the AIDS Healthcare Foundation's October 25th Los Angeles Times editorial, the solution "is to vigorously enforce, and if necessary strengthen, existing rules requiring condom use for adult performers." They argue that the public health concern is indisputable (citing that more than 4,000 people who identified themselves as adult film performers in Los Angeles County have tested positive for chlamydia, gonorrhea or syphilis since 2004) and that the labor laws are indisputably being violated. They argue that the studios continue to flout the law and the state and county remain reluctant to enforce them. Frankly, they have a point.

It's unclear if anything will change after this most recent positive test and the (temporary?) closing of AIM. With every announced HIV-positive test in the industry comes a strong push from the government and certain activists for mandatory condoms in the straight porn industry. The industry and many performers respond that it's unnecessary and will push porn out of California and underground, where performers will be provided with even fewer protections. The industry is almost certainly violating state worker protections by not mandating condoms, but this seems as much a matter of political and economic clout and practicality, as it is law. The porn industry is a huge revenue provider in a cash-strapped state, which continues to do a decent, if not excellent, job of self-regulating. There are no court cases sussing out the perimeters of the industry's duty to protect or educate, the rights of performers to take on risks, the rights of HIV positive performers to perform with condoms, or the medical privacy concerns related to the accumulation and dispersal of testing information by AIM. Until a performer is willing to push these issues to court as a matter of first impression, resolutions will continue to be speculative. Since the straight industry continues to be profitable, and continues to find performers willing to take the risks inherent in any unprotected sexual activity, it's hard to see what else would finally force the necessary dramatic change.

From a public health standpoint, really, is condom-less anal or vaginal sex in any part of the porn industry acceptable?