more perspectives on HIV & porn

People are still getting riled up around HIV & porn. And two bloggers whose opinions I generally click with have come to two very different places on this issue.

Tony Comstock has some interesting stuff to say about the safety of porn performers and the general lack of response from the sex-positive world. He makes some good points- my experience is that the sex-pos community has generally focused on the experience of watching porn and how it can affect people’s sexualities, rather than talking about the experiences of the people who make porn.  And he offers this:

I simply cannot see how the introduction of a camera makes it “sex-positive” for performers to do things that we would decry in any other circumstance. Would a “sex-positive” person claim that a sex-worker is exercising ”agency” if she engages in unprotected anal intercourse with multiple clients? Or would we call this out for what it is, an unwise and risky practice? And when the sex positive community judges the “adult entertainment industry” by a different set of safer sex standards than we offer in any other circumstance, we diminish both the concepts of sex-positivity and safer sex.

The sex-positive community has already had, on more than one occasion, self-satisfied three-minute hates about phthalates and anal-ease, where we congratulated ourselves on our modern and progressive notions about sexual health and our discriminating taste in sex toys. We have repudiated the makers and purveyors of these products for being unconcerned with the with the health of their customers.

Will the sex-positive community be able to muster the same level of outrage and reject the health risks that are currently accepted as part and parcel of making “adult entertainment?” And if we did, wouldn’t that bring the world a little closer to a more grown-up and joyful understanding of sex?

and at the same time…

Ernest Greene offers a more in-depth look at the factors that make condoms challenging on porn sets than you’ll find in most discussions, such as long sex sessions leading to a higher failure rate, latex abrasions, and vaginal bacterial infections. He also offers the perspective that mandatory testing with no condoms is better than condoms with no tested. And if you want to know why it’s an either or, here’s his explanation:

Worse, if that’s possible, than Cal-OSHA’s plan for porn would be the means through which it would have to be put in place. Cal-OSHA has jurisdiction only over employees. Independent contractors, which is how porn performers not under contract to specific companies, are currently classed under state law, would not be subject to Cal-OSHA supervision unless reclassified as employees.

So what, you might ask, is so bad about that? After all, it would make them eligible for workman’s comp and provide them with a mechanism for reporting unsafe working conditions on the set.

There’s just one little hitch in this plan. It is against the law in California for any employer to require an HIV test, or even to ask about a potential employee’s HIV status, as a condition of employment. Doing so is considered employment discrimination and carries significant penalties to the employer.

In fact, if performers were considered employees rather than contractors, it would be illegal for a producer to hire a performer on the grounds that said performer was, in fact, HIV positive. That’s right. Producers would be required to hire HIV+ performers, and if other performers didn’t like working with them, those performers would be fired while the HIV+ performers would be allowed to remain on the set until partners could be found who would work with them.

I’d love to hear from someone else who’s well-versed in these issues on this, since I’m not a lawyer. I’m still sitting with all of this, but one thing is clear. There’s very little clear information on this. As was pointed out in a comment on my last post, a lot of the “reporting” is simply wrong, which makes it even harder to figure out what’s going on. Not to mention the sensationalizing that happens whenever porn hits the news. My hope is that we’ll get better information about this issue- I’d like a bit more clarity.

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3 Responses so far.

  1. Baron Wood says:

    I think both of these opinions are absolutely correct and not at all mutually exclusive.

    Mr. Comsctock is calling on the self-regulating adult entertainment industry to clean up their act through societal pressures and he’s citing the sex-positive community to lead the charge. Mr. Greene’s point that OSHA is not in a legal position to impose laws to that effect, in fact they’re legally obligated otherwise, doesn’t change the fact that a community that concerns itself with the forward momentum of society’s view of sex work does have an internal obligation to get involved.

    Practical issues of latex and scene duration aside, I’m having a hard time finding a flaw in Mr. Comstock’s logic.

    And thanks very much to Mr. Greene for illuminating the apparent legal paradox of health regulations in porn.

    -BW

  2. Hello Charlie, thanks for posting this. If you will permit me a couple of points of clarification:

    The passage you’ve quoted was not written in response to the current HIV outbreak. It was written three months ago. Nor is it an expression of a new position. I came to my conclusions about what I would and would not ask people do do in front of my camera after the 1998 HIV outbreak that originated with Marc Wallice, and several years before I made my first commercially available film. In fact, the approach we use is a direct product of my desire to make films that are creatively satisfying and commercially sustainable without compromising the decision I made in 1998 to depend on a testing regime to ensure my subjects’ health and welfare. I would not depend on such a regime to ensure my own health, or the health of those I love, and because if this I cannot depend on such a regime to fulfill my vision of the union of sex and cinema.

    I am pleased to say that with the support of retailers such as Good Vibration and others, my creative vision and the ethics that inspired it have proven to be capable of producing films have been both creatively and financially successful. Our films have delighted audiences around the world, in theaters and in bedrooms, won numerous awards and other recognition, and have provide an abundant life for me and my family. I have never had a single moment’s regret or ever questioned our commitment to the health and safety of our subjects.

    I would like to say plainly that the oft-cited paradox of performer safety vs. profitability is a false one. What my wife and I have accomplished in the last 10 years is proof of that. Entertaining, profitable films can be made without asking people to take sexual risks to make filmed entertainment that we would decry in any other circumstances. Performer risk can be mitigated by directors who are willing to take creative risks, and producers who are willing to take financial risks.

    I think it’s worth remembering that 20 years ago sextoys were generally of poor quality and often made of dubious materials. But in the intervening two decades, and in large measure thanks to Good Vibrations and sister retailer promotion of companies like Vixen Creations, Njoy, Fun Factory and others, there is a wide range of products for the enhancement of sexual pleasure that are made to the same standards that we’d expect of any other consumer products.

    The challenges facing a filmmaker are even more daunting than those faced by these sextoy pioneers. Given our unique subject matter, our films are made from the lives of other human beings. My wife and I are ever mindful of this, and grateful to Good Vibrations for your ongoing support.

  3. Christophe says:

    Hi, Charlie,

    I commented on this over at Ernest Greene’s blog, but I wanted to clarify some points he made.

    Cal-OSHA has jurisdiction only over employees.

    This is false. Cal/OSHA has jurisdiction over all workplaces in California, regardless of whether or not the individuals are classified as employees or independent contractors. (In any event, some of the largest production companies in California already classify their performers and crew as employees.)

    Regarding his point about HIV+ performers suing under California’s anti-discrimination laws:

    1. Independent contractors hired to perform personal services (i.e., you hire that individual, not a company who sends a random person over) have the same anti-discrimination protections as employees.

    2. As noted above, many production companies already classify their performers as employees.

    So, the apocalyptic scenarios he offers can come to pass right now, without mandatory condom use. I must confess that I do not find his linkage of those scenarios with condom use to be compelling; I really don’t see a relationship at all.

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