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Is it time to regulate the porn industry?

[Blast Magazine]- The United States adult film industry produces 4,000–11,000 films and earns an estimated $9–$13 billion in gross revenues annually. An estimated 200 production companies employ 1,200–1,500 performers. Performers typically earn $400–$1,000 per shoot and are not compensated based on distribution or sales.

But the industry is a breeding ground for HIV and sexually transmitted diseases, and some legislators are demanding safer sex practices in adult films to prevent the spread of such infections.

Los Angeles County is the largest center for adult film production worldwide. In 1988 the California Supreme Court found adult film production to be protected as free speech under the First Amendment, since such films were not considered obscene based on prevailing community standards. Unlike other legal but highly regulated activities such as gambling and commercial sex work in Nevada, the adult film industry was legalized in California through case law, not by statute, and has for the most part escaped governmental oversight.

Regulation of the industry has been limited to prevention of child pornography, meaning performers can not be under the age of 18. Adult film production companies are required to have a Custodian of Records to document and retain records of the age of all performers, to enforce the age entry restriction.

Adult film performers engage in prolonged and repeated sexual acts with multiple sexual partners over short periods of time, creating ideal conditions for transmission of HIV and other sexually transmitted diseases (STDs). These practices include sex acts that involve simultaneous double penetration (double-anal and vaginal–anal intercourse) and repeated facial ejaculations.

Such high-risk practices are on the rise, according to an article published in the Los Angeles Times. At the same time, condom use is reportedly low in heterosexual adult films—approximately 17% for adult performers, according to a recent New York Times article. In 2004, reports show, only two of the 200 adult film companies required the use of condoms for all penile–anal and penile–vaginal penetration. Performers report that they are required to work without condoms to maintain employment.

These practices lead to high transmission rates of STDs and occasionally HIV among performers. After four performers contracted HIV in 1998, Sharon Mitchell, a former adult film performer, founded Adult Industry Medical (http://www.aim-med.org), a clinic to counsel and screen performers monthly for HIV. It was expanded later to include other STD testing. The testing program began as an effort to reduce transmission of infections through early diagnosis, treatment, and “quarantine” should a performer test positive for HIV. Performers are required in most cases to pay for all screening tests, and to sign a consent form that permits disclosure of their test results to other performers and producers before filming. Both of these practices are explicitly prohibited under California Occupational Safety and Health Administration (Cal/OSHA) regulations. HIV-positive female performers are permanently excluded from participating in adult films.

Performers may also be exposed to HIV and other STDs outside the workplace, such as in commercial sex work through escort services or through the use of intravenous drugs.

But while the current practice of periodic HIV and STD testing may detect some disease early, it often fails to prevent transmission. The most recent HIV outbreak occurred when three performers who had been compliant with monthly screening contracted HIV in April of 2004. At that time, a male performer who had tested HIV negative only three days earlier infected three of 14 female performers.

Vivid Entertainment Group, one of the largest producers of adult film in the US, temporarily implemented a condom-only policy after the HIV outbreak in 2004 but has since reversed this company policy. Although some companies may voluntarily decide to be condom-only, it is unlikely that this industry will establish safer working conditions for employees without external regulation.

Other STDs are also highly prevalent in the industry. Among 825 performers screened in 2000–2001 study, 7.7% of females and 5.5% of males had chlamydia, and 2% overall had gonorrhea. Some might argue that this program of STD testing keeps rates of HIV and other STDs lower than in other sex-related industries, and in fact, a recent study of prostitutes in San Francisco found 6.8% and 12.4% positivity rates for chlamydia and gonorrhea, higher than rates in the adult film industry.

Between January 2003 and March 2005, studies show, approximately 976 performers reported 1,153 positive STD test results. Of those, 722 (62.6 %) were chlamydia, 355 (30.8%) were gonorrhea, and 126 (10.9%) were coinfections with chlamydia and gonorrhea. Less is known about the prevalence and risk of transmission of other STDs such as syphilis, herpes simplex virus, human papillomavirus, hepatitis B or C, trichomonal infection, or diseases transmitted through the fecal–oral route.

Even with the PCR testing currently used within the industry, a recently infected performer can test negative during the window in which they are highly infectious and go on to transmit the virus to others. A meta-analysis suggests that condoms are 90%–95% effective in preventing HIV transmission. When looking at HIV exposure risks by site, receptive anal sex has the highest risk at 80 instances of transmission per 10,000 exposures, higher than needle stick injuries (10–50 per 10,000) [13] or receptive vaginal penetration (10 per 10,000). Pre-existing infection with other STDs also increases the risk of HIV transmission.

Some critics have voiced concerns that the somewhat idealized portrayal of unsafe and unprotected sex in adult films may influence viewer behavior, in the same way that detractors say smoking in mainstream films romanticizes tobacco use. Health officials have suggested that portraying condom use onscreen could increase condom use among viewers, thereby promoting public health.

In contrast to heterosexual adult films, homosexual-targeted productions more consistently require condoms. Due to the large number of HIV-positive performers, there is no requirement for HIV testing and condom use is the norm. Despite the ubiquitous use of condoms, homosexual adult movies are popular and profitable for production companies. In fact, there is some evidence that homosexual male audiences would not tolerate movies with unsafe sex, likely due to their proximity to many with HIV in the homosexual community. Some homosexual audiences regard watching sex without condoms as “watching death on the screen,” according to a report in the Los Angeles Times Magazine.

Regulation of Sex-Related Industries Legislators can look to Nevada for a model for the successful regulation of a legal sex-related industry. Since the institution of mandatory condoms in Nevada’s brothels in 1988, not a single sex worker has contracted HIV. Workers must be repeatedly tested for HIV, syphilis, gonorrhea, and chlamydia to maintain a state health and work card. Other countries such as Mexico and Brazil also enforced condom regulations in the sex industry.

Occupational Health and Safety

In California, every employer is required to ensure that employees have a safe working environment. Employers must protect employees from blood-borne pathogens and not discriminate against employees that complain about safety and health conditions. Companies are required to prevent workers from coming into contact with blood or other potentially infectious material, including semen and vaginal fluid, and to provide post-exposure prophylaxis. Universal precautions, which assume all material is potentially infectious, are part of the blood-borne pathogens standard.

In the health care setting, it is hard to imagine a clinic or hospital not providing and requiring its employees to wear gloves or other personal protective equipment. If a health care worker has a needle stick or other potentially infectious fluid exposure on the job, systems are in place to rapidly and effectively treat the employee to prevent transmission of HIV and other infectious diseases. Although a legal industry, adult film has allowed consistent exposure of its employees to HIV, hepatitis, human papillomavirus, herpes simplex virus, chlamydia, gonorrhea, and other diseases without liability or worker recourse.

Cal/OSHA has recently made recommendations specific to adult film to protect performers from acquiring sexually transmitted infections. This includes the use of personal protective equipment (condoms and dental dams) as barriers, simulation of sex acts post-production, and ejaculation outside the partner’s body. Cal/OSHA also requires a procedure for exposure incidents when an employee has contact with potentially infectious material. The employer must provide a medical evaluation and follow-up at no cost to the employee.

Mandatory reporting in California is required for chlamydia, gonorrhea, HIV, syphilis, chancroid, non-chlamydial non-gonorrheal urethritis, and pelvic inflammatory disease. The Los Angeles County Department of Public Health has monitored the industry to assure that performers receive adequate treatment and follow-up for STDs and has endorsed external regulation of the industry that would require condom use, STD screening, and education to prevent STD transmission.

Response from California legislators has been limited. In 2004, Assemblyman Paul Koretz, Chair of the Assembly Committee on Labor and Employment, sent a letter to 185 adult film production companies urging them to adopt condoms or face legislative action.

Two years later, this letter has had little to no effect and the adult film industry continues to produce the great majority of films without condoms. In October of this year, a multi-stakeholder meeting was convened at the University of California to readdress the issue of worker safety. A group of 65 participants including performers, industry executives, state and local health officials, and legal representatives spent the day debating the controversies and difficulties of mandated STD screening and condom regulation.

Concerns were raised about the industry going underground or moving out of state should there be a state but no national requirement. Many present felt it would be difficult to regulate small production companies that distribute their films primarily via the Internet. There was an emphasis on the need for a multi-faceted solution that involves the extension of existing worker protection to this industry with better enforcement, the organization and potential unionization of performers, increased public awareness, and thoughtful legislation.

While some argue that adult film will go underground if condoms become mandatory, it is hard to imagine that a legal multi-billion dollar industry would disappear. Distributors and production companies have become so entrenched in Southern California that it seems unlikely that they would move to another location or go clandestine. Adult film is now so accepted and widespread that it cannot easily escape regulation, especially now that is so readily accessible on the Internet, cable networks, and in most major hotels.

Unfortunately, the growing popularity of adult film has not translated into safer working conditions for performers. It is unethical for industry executives, legislators, and consumers to continue to enjoy the profits, tax revenues, and gratification of adult film without ensuring the safety of performers.

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