Court: Gov't Not Required to Mandate Condom Use in Adult Entertainment

An appeals court has reaffirmed an earlier verdict in which an AIDS group sought unsuccessfully to force health officials to mandate actors and models in adult entertainment to wear condoms, a June 23 Associated Press article reported.

The 2nd District Court of Appeals agreed with the earlier decision in finding against the AIDS Healthcare Foundation, which initially brought suit in 2009 to compel a California county health department to require condom use in the pornography industry.

"The appeals court said the county health officer has discretion in his duty to prevent and control disease," the AP story said.

The group plans to appeal to the California State Supreme Court, the article added.

That appeal may not be necessary if the state government's Occupational Safety & Health Administration (OSHA) succeeds in mandating condom use for porn performers. Cal/OSHA has made noises about imposing a condom requirement on the porn business since at least last year.

Cal/OSHA investigated Treasure Island Media after hearing a complaint about the porn film studio in November of 2009, according to the California Department of Industrial Relations. The investigation led to three citations, including a citation for inadequately protecting employees from disease transmission. "On Nov. 5, 2009, Treasure Island Media had failed to write or otherwise establish, implement and maintain an effective exposure control plan," the investigation determined. The company was fined more than $21,000.

The fact that the actors in the company's films were performing without condoms was noted in the report. "Treasure Island Media does not observe universal precautions during the production of their films," the report stated. "They have not instituted engineering and work practices controls to eliminate or minimize contact with blood and semen, including, but not limited to, the use of barrier protection such as condoms."

Treasure Island Media has cast several HIV+ actors in its films, and the company has made a selling point of their participation. But the use of HIV+ actors was not at issue, according to Cal/OSHA's Deborah Gold, who told pornography industry news publication Xbiz in a Dec. 3, 2010, article that the citations stemmed partly from unprotected sex and a lack of universal precautions, regardless of HIV status.

"Anybody may be infected, therefore you have to treat everybody's blood and other potential infectious materials as though it can be infectious," Gold noted.

The San Francisco-based Treasure Island Media has been barred from being present at gay events like the Folsom Street Fair and International Mr. Leather. The latter event has banned vendors from selling any materials, including videos, that depict barebacking.

EDGE Reported in a June 13, 2009, article on a rash of HIV infections among models in heterosexual adult films that roiled the porn industry and set the stage for OSHA intervention.

"While barebacking is extremely controversial in the gay-porn world, condomless sex is more or less taken for granted in straight porn," EDGE reported. "There's a perception that if performers are regularly tested, there's less worry about infection than among gay men."

An Aug. 12, 2009, Advocate article followed up on the story, reporting that the issue of mandatory HIV testing for adult film performers had once again surfaced in the wake of the reported rash of new infections. But the "outbreak," the article said, involved fewer performers than initially reported--and of those cases, it was impossible to determine who, if any, of the affected performers were exposed to the virus on set, versus in their private lives.

But the fact remains that the industry, though supportive in some quarters of testing for STDs, is not as pro-active in terms of condom use to prevent the spread of infections, including HIV. The article quoted JM Productions' Tony Malice as saying, "If a girl only wants to work with a condom, she can seek out that work ... same for men. But it will be much less work."

An EDGE article from May 24, 2010, reported on barebacking, noting that, "The question as to why barebacking has become increasingly popular, both in adult films and in everyday life, has become something of the elephant in the room in the gay community: something that's going on despite the health risks, but really not discussed."

Either because consumers want to see barebacking depicted on film as a means of fantasizing about a kind of sex they do not participate in, or because they do decline to practice safer sex and wish to see those choices reflected in films, there is a high demand for barebacking videos, the EDGE article noted.

Some criticize the production of these videos, saying the younger gays who view them will take away an impression that they do not really need to protect themselves against sexually transmitted infections (STIs). Others defend barebacking productions on artistic and free speech grounds. For businesses, however, simple market pressure mandates the production of videos depicting unprotected sex.

That's exactly why some want to see government regulations enter the picture.

"We want to break the chain of infection," Michael Weinstein, the head of AIDS Healthcare Foundation, told EDGE. "Personally, I lived through the worst of AIDS in the gay community. I lived through a time when safer sex was the norm and 100 percent of gay videos used condoms. We're doing everything we can to return to that time."