Calif. to Outlaw Barebacking in Porn?

by Kilian Melloy

EDGE Staff Reporter

Wednesday June 1, 2011

It's a wrap: California's Occupational Safety & Health Administration is pressing ahead to make condom use a matter of law for actors in adult films, the Associated Press reported on May 31.

The state's Occupational Safety & Health Administration 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."

"We have appealed the citations and participated in the informal conference process and expect to take the matter to a hearing in 2011 with an administrative law judge," the studio's general manager, Matt Mason, told Xbiz.

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 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.

Treasure Island Media is based in San Francisco and was established by film producer and director Paul Morris in 1998, according to a Wikipedia article. The studio has been controversial in the gay world. According to the Wikipedia article, 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.

Safety vs. the Market?

Safer sex advocates, alarmed at rising HIV rates, have taken a stand in opposition to barebacking videos. Los Angeles-based AIDS Healthcare Foundation mounted a campaign last year to involve state health authorities in the issue.

"We're looking at everyone who benefits from putting these performers at risk: the producers, the hotels that show it, the talent agencies that procure the people and the clinic that does the STD testing that serves as the fig leaf for the industry," Michael Weinstein, the head of AIDS Healthcare Foundation, told EDGE.

"Our goal is not have any new clients," added Weinstein. "We want to break the chain of infection. 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."

A Dec. 13, 2010, EDGE article predicted that a showdown over the issue would not be long in arriving.

"On Dec. 9, [2010,] the Los Angeles County Department of Public Health shut down a San Fernando Valley medical clinic that existed to provide HIV testing to gay and straight porn actors and was funded within the industry," the EDGE article recounted.

"The Adult Industry Medical Healthcare Foundation had operated clinics in Sherman Oaks and Granada Hills since 1998, but Los Angeles DPH officials didn't know until last April that it never had a license.

"AIM applied to the state Division of Occupational Safety and Health, charged with enforcing regulations protecting California's workers, for a license in June. Saying it was incomplete, Cal/OSHA denied the application two days before the county closed the clinics.

DPH said porn actors could be tested at county clinics. One other facility for the industry is operated by Talent Testing Services in Northridge."

Another factor in the controversy was straight actor Derrick Burts, who starred in both gay and straight porn and who was diagnosed as HIV+ shortly after embarking on his adult film career.

The Los Angeles Times reported that Burts had sex with six men and ten women, almost all of them for work, during a two-month span between when he began making porn and his diagnosis. Burts was negative when tested on Sept. 3, 2010, only to test positive just over a month later. He had been making porn films since early August of the same year.

Two of the men with whom Burts worked in that two-month period were HIV+. Burts had previously said that he had used condoms when performing anal sex acts, but otherwise had not. Health authorities speculate that Burts contracted the virus during a one-month span from the middle of August to the middle of September, 2010.

The Times said that, according to Burts, 15 of his 16 partners were people with whom he had sex for work.

U.S. Centers for Disease Control and Prevention's Epidemic Intelligence Service's Dr. Francisco Meza has been working with the California Department of Public Health. Meza prepared a report in which he said that porn studios had stonewalled the investigation into Burts' HIV infection and the question of whether he might have transmitted the disease to others.

The LA Times reported in a Nov. 5, 2010, article that the Adult Industry Medical Healthcare Foundation, a clinic affiliated with the porn industry, declared that Burts contracted the virus during a personal sexual encounter, rather than while on the job. The clinic also said that Burts had not infected any other actors.

But the clinic failed to make any records available to substantiate the claim, and the studios refused to help investigators.

"Limited cooperation from many adult film industry companies restricted this contact investigation," the report said. "Rarely did industry legal counsel give information for investigation."

The report was slated to be among those presented in Atlanta on April 15 at a CDC conference. However, the presentation did not go forward. The report had been presented in March during a smaller CDC gathering at San Diego State University, the LA Times reported, with the article adding that the newspaper had gotten a copy of the report.

In the course of the report, Meza noted that the investigation was further hindered by the use of stage names by the actors. Meza called for the studios to disclose the real names of the actors.

Investigators managed to locate five of the 15 actors with whom Burts had sex with for pornographic films, but they all proved unwilling to be of assistance.

Burts had initially been referred to as Patient Zeta, but he disclosed his identity late last year and called for condoms to be required for actors making adult films. Burts had appeared under two different pseudonyms. He was billed in heterosexual porn films as Cameron Reid. In gay porn he used the name Derek Chambers.

The AP story reported that AIM had issued a statement saying, "Patient Zeta acquired the virus through private, personal activity." But Burts told the Los Angeles Times otherwise.

"That's completely false," Burts declared. "There is no possible way. The only person I had sex with in my personal life was my girlfriend."

Now the California OSHA is moving forward with a proposed addition to state law that would mandate the use of condoms on the sets of adult pictures, the May 31 AP story said. The current draft proposal runs 17 pages long and will be open for discussion at a June 7 public meeting in Los Angeles.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.