Porn & Condoms: Adult Industry Stands Divided

Porn & Condoms: Adult Industry Stands Divided
Dan Miller

LOS ANGELES — The adult industry remains in opposition with Los Angeles County and the state of California over whether condoms should be mandated in porn, but the biggest debate is happening within its ranks.

In an industry that profits from creating sexual fantasies, the most polarizing question facing it today is whether the use of condoms is enough to destroy them.

Many believe the combination of mandatory condoms and STI testing every 14 days provides porn performers with the safest possible environment in which to work. However others say that condoms do not necessarily reduce the risk of contagion and shooting porn with them results in a critical disadvantage in the marketplace.

“We don’t have our actors use condoms but we adhere to strict testing for HIV and other sexually transmitted diseases,” said Larry Flynt, founder of LFP/Hustler Video. “The reason why we don’t demand they use condoms is because there’s no market for videos with condoms. For some reason they do not sell when condoms are used. It’s like masturbating with gloves on.”

Flynt told XBIZ there is a “psychological barrier that the people who are viewing the films have trouble getting over” when it comes to condoms.

That barrier can not only be a deal-breaker for porn fans, but also for studios producing adult films for profit and the performers who prefer to work without condoms for various personal reasons. And it’s why in a business in which consenting adults use their bodies to earn their living, it should be up to the performers to choose whether they want to use that level of protection while filming a scene.

The condoms-in-porn issue became a controversial topic both within the adult film industry and in the mainstream media during the run-up to the November 2012 election. The AIDS Healthcare Foundation (AHF), which is the largest provider of HIV/AIDS medical care in the country, positioned itself as the most vocal proponent of mandatory condom use. With an annual budget of $750 million, AHF runs a network of HIV and AIDS testing and treatment facilities around the world. It has 10 clinics in the Los Angeles area alone.  

AHF orchestrated an aggressive multimedia campaign to urge the passage of Measure B, also known as the “Safer Sex in the Adult Film Industry Ordinance” that requires the use of condoms in the production of adult movies in L.A. County. It passed with almost 57 percent of the public voting “yes.” 

“Basically these people who are proponents of condom use, they don’t care about the issue of condoms. They’re just trying to shut the industry down and they found a niche way to do this,” Flynt said. “If you go back over the last 20 years, you can count the number of HIV infections in porn as an example. The average is way below the infection rate in any particular category in the whole country. You have a better chance of getting AIDS from having a one-night stand out in Glendale than getting it on a porn shoot. We’re fighting an uphill battle in getting people to believe this, but it happens to be true.”

The actual enforcement of the condom law is another matter that is far from resolved. Vivid Entertainment, along with co-plaintiffs Kayden Kross and Logan Pierce, in September filed an appeal in the 9th U.S. Circuit Court of Appeals regarding U.S. District Judge Dean Pregerson's denial of a temporary restraining order in their suit against enforcement of Measure B. That ongoing struggle currently is the adult industry’s most visible response to the passage of Measure B.

But the condoms-in-porn initiative got even more convoluted with the introduction of legislation sponsored by Assemblyman Isadore Hall that would require performers to use condoms in productions shot anywhere in California. The Senate’s decision on the condom legislation now referred to as AB 640 is on hold until 2014 because it was not heard or voted on by the Sept. 12 deadline.     

“I don’t think they should make anything mandatory,” Flynt said. “If performers want to work in the industry, that’s their choice. But the performers have to understand that they’re creating a product we have to sell to get a return on the investment, and part of that is without the use of condoms.”

Nina Hartley, who has performed in porn movies for more than 30 years, also opposes mandatory condoms, favoring a “truly condom optional” policy.

“If a performer would feel more comfortable in a scene and therefore more free, I want them to be able to choose condoms without there being negative repercussions, vis-à-vis future employment by that company,” Hartley told XBIZ. “If a performer feels more comfortable not using condoms in a particular movie or with a particular partner, then the performer should not be required to use them because of company policy.”

Hartley, who is a registered nurse as well as an industry activist, strongly advocates women’s and men’s rights to “control their own bodies and what happens with them.”

“As well, it makes no medical sense, nor does it dramatically increase performer safety to mandate condoms when a performer does not want to use them,” Hartley continued.

“Stats show that the testing protocols we have in place have been very, very effective in keeping HIV out of the performer population. And our performer notification protocols quickly find the first- and second-generation contacts of an infected performer.” 

Hartley noted that “between 1998 and 2012, porn had two documented cases of on-set transmission of HIV, while L.A. County had 30,000 new cases.”

Three new cases of HIV—none of which were found to have been contracted on a set according to adult industry trade association, Free Speech Coalition (FSC)—clobbered the porn industry this past summer, prompting two separate moratoriums on production. Those cases came on the heels of the second industry syphilis scare in as many years in a case that ultimately turned out to be a false alarm as the performer’s confirmatory tests came back negative.

But less than a week later, the industry faced another crisis when a veteran male performer was alleged to be working in scenes despite testing positive for some form of hepatitis. The performer in question chose to remain silent about the allegations, which still have not been confirmed.

These developments not only placed adult industry testing protocols under increased scrutiny but also re-ignited discussions about mandating condom use in all adult films regardless where they’re shot.

FSC, which led a “No on Measure B” campaign in 2012 and continues to oppose the mandatory condom law in favor of self-regulation by the industry, stated it has a “condom optional” policy for adult films.

“Our policy is performers have a choice whether or not to use a condom,” FSC CEO Diane Duke told XBIZ. “The current testing protocols have clearly worked. These latest incidents of HIV-positive performers have shown that our testing protocols have worked. There were no transmissions on set and we were able to identify HIV-positive people and get them treatment.”

Tristan Taormino, the author, sex educator and feminist filmmaker, said she recently changed her policy on condoms in her movies from a performer’s choice to being a requirement. Her exception would be if the couple is “fluid-bonded” and requests no condoms with each other.

“When I solicited feedback from performers who were given the opportunity to anonymously state what they want, the majority told me they want to use condoms but are afraid to publicly say so for fear of losing work or being blacklisted,” Taormino told XBIZ. “This honest information coupled with the increased incidence of STI outbreaks and issues in the past year, and the three recent cases of performers testing HIV positive contributed to my decision. This is not just about HIV, but the increased incidences of STI transmissions on sets.”

The porn industry’s lack of solidarity and the desire for anonymity on the question of condom use is only increasing. Several high-profile porn performers and studio owners declined XBIZ’s requests for comment on the issue.

Porn performer Alana Evans, a 15-year veteran, told XBIZ she also has changed her personal policy to only using condoms in her scenes, but she does not think that making them a mandate for all performers is the answer.

“I want to work with condoms because I feel it is the safest choice,” Evans said. “Many times I show up for a scene the performer isn't someone I have worked with before. I don't necessarily know what others do in their personal life outside of work, nor do they know my personal life. Because of this, I have decided to protect myself, and at the same time, protect the performers I am working with.”

She added, “I do not believe that mandatory condoms is the right choice. Not all performers can work with condoms, so I believe it should be performer choice. But I do believe that companies need to accept condoms and our choice to use them. The biggest battle in this debate is not performer choice or regulation, but it is companies opening their minds to our desire and right to safety, while still being able to turn a profit.”

Steve Orenstein founded Wicked Pictures, which has mandated condom use in all its sex scenes for vaginal and anal intercourse since 1998. Wicked made condoms a requirement after the HIV scare that year—the company had been condom optional prior to that.

“Wicked has been condom mandatory for 14 years,” Orenstein told XBIZ. “Regardless of that, I have never said what anyone else should choose to do with their company. That hasn’t changed. Every company and individual performer should decide what works for them. My position has also stayed consistent that the government shouldn’t mandate that decision either. If every company went completely condom only, would that help Wicked with the percentage of viewers that stay away from condom movies? Of course, but that still doesn’t make it our place to dictate what others do.”

With their condom policy in place, Orenstein has built Wicked Pictures into a leading studio known for its quality features geared toward the couples market.

“I think scenes can produce heat with or without condoms,” Orenstein said. “Certainly shooting with condoms creates more challenges on set. Regardless of how much heat the scene projects, there are some viewers that get turned off just by the sound of the word condom. There have also been certain reviewers over the years who have deducted points for condom use. Others can look past it and enjoy the scene regardless of the condom.”

Because so-called “gonzo” or “all-sex” movies—porn without a plot—often contain significantly more hardcore, graphic sexual encounters than most couples porn, the use of condoms is that much tougher of a sell to the public. And porn movies without a plot still represent the majority of what’s being produced on a weekly basis.

Immoral Productions owner Dan Leal is one gonzo studio owner who has made the adjustment to condoms but has yet to see his revenue drop.

“Some of my series started [using condoms] as long as four years ago,” Leal told XBIZ. “‘Fuck a Fan’ was the first one I did with condoms.”

Leal produces, directs and performs in his live shoots that are later packaged for DVD distribution by Pure Play Media. In February, he changed his company policy from condom optional to mandatory.

Immoral’s “Fuck a Fan” series pairs male fans with professional female performers in live sex scenes.

“From the standpoint of the fans as performers, they didn’t have a history of [testing] panels like a normal performer would have,” Leal said. “Then I always had condoms on set for performers and very few chose to use condoms. It was rare.” 

He said that his decision really wasn’t even his to make.

“It was we’re following the law. The law requires for us to use condoms,” Leal said. “And our stuff is simulcast on television, so there is no way to circumvent it, no way to play hide-and-seek like some other producers.”

Leal added, “I understand both sides of the argument. I listen to performers. It’s just like wearing your seatbelt while driving. It’s not an option. Technically, everyone anywhere in the state of California is supposed to use condoms if they’re making adult content for profit.”

By state law, Leal noted that the California Code of Regulations Title 8, Section 5193 mandates barrier protection, including condoms, to shield performers from contact with bloodborne pathogens, or other potentially infectious material during the production of films.

Cal/OSHA, or the Division of Occupational Safety and Health, defines bloodborne pathogens as pathogenic microorganisms that are present in human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B & C and HIV. There is a federal bloodborne pathogens law that is almost identical to the one in California, according to officials from the state’s Department of Industrial Relations.

Given the language of Section 5193, the adult industry’s policy should be to “comply with the law or seek a variance from the Standards Board,” Peter Riley, manager of Cal/OSHA’s Region III, told XBIZ.

Leal said at post time he has been working closely with his attorney Michael Fattorosi on drafting a variance to change the language of Section 5193 in a way that would benefit the entire adult industry.

“We’re getting closer to coming up with a compromise that is livable for everyone,” Leal said. “Part of the variance is producers would not be required to use condoms for oral sex.”

The veteran producer also maintained that the condom requirements of Measure B and AB 640 are “redundant” since Section 5193 calls for the same protection for workers potentially exposed to bloodborne pathogens.

While Measure B and AB 640 have received all the publicity during the past year, Leal pointed out that Section 5193 has existed since 1993.

“Most people are choosing to ignore it,” Leal continued. “The law is very clear. It’s very straightforward. It’s been on the books for 20 years. There is already an existing OSHA law on the books but the only time they ever enforced it or investigated people is when there was the possibility of people spreading HIV on set.”

Cal/OSHA’s Riley said the penalty for someone who is found to be in violation of 5193 “depends on the violation of the law and the classification of the Citation.”

“If the citation is for a serious exposure then the Citation would be classified as Serious and the penalty can range from a minimum of $900 to a maximum of $25,000,” Riley said. “If the Citation is classified as Regulatory or General then the penalty is less.”

According to Riley, the last time an adult film producer was cited for a violation of 5193 was in September.

“If upon inspection Cal/OSHA believes there is a violation, Labor Code 6317 requires Cal/OSHA to issue a citation for the violation,” Riley said.

Riley would not say whether he thought Measure B or AB 640 were redundant because it is Cal/OSHA policy to not comment on legislation. However, he did confirm that 5193 was not written with the intention of regulating the adult film community.

“Yes, the bloodborne pathogen standard was not written with adult films in mind, but if you read the scope and application of Standard 5193, it applies to the adult film industry,” Riley noted.

Using condoms in all his shoots has increased his broadcast sales opportunities, Leal said, and only a small number of fans have complained.

“Today’s consumer is so knowledgeable, especially with everything that just happened recently,” Leal reasoned. “I bet if you asked any fan, ‘Should porn use condoms?’ Ninety-eight percent would say, ‘Of course they should, what are they retarded?’ The only people who think we shouldn’t are the nincompoops who are in it. And that used to be me, too.”

Leal added, “Sure they are physically taxing. We go through six to 10 per show. They’re a nuisance. They make it harder to do a scene. Most of the girls don’t like them either. But these are things you learn to adapt to.”

Tom Byron, one of the longest tenured performers in the adult industry, offered the historical perspective of someone who has done adult movies for more than 30 years.

“I believe condoms and testing are the safest and most logical means of protecting talent from HIV and other STDs,” Byron told XBIZ. “I've been in the biz since 1982, before AIDS was an issue or even known about really. In fact, the first time I heard someone talking about AIDS and it making people sick, I thought they were talking about the diet candy AYDS, that is was tainted or something.

“When it began to emerge as a serious threat and people that I knew were getting sick and dying from it, it was terrifying. No cure. You got it, you died a horrible death. And having sex was how you got it. And having sex was how I and all my friends made a living. Yet we lived in denial, tried to classify it as a gay disease. If you weren't gay, you were safe. If we only worked with our circle, we would be fine.

“There wasn't even a test for it. When there was, I said, ‘Why don't we test?’ When we found out condoms helped prevent transmission, I said, ‘Why aren't we wearing condoms?’ I was told to shut up and not make waves.”

Byron decided in the early ’90s to take a stand and work only with condoms, but “I was shunned and my workload plummeted,” he said.

“Faced with poverty and legal bills because of an IRS case that targeted myself, Ginger Lynn and Harry Reems, I abandoned my stance two years later,” Byron continued. “Had I stuck it out and had the industry followed my lead and instituted universal condom use with testing, would it have made a difference?

“... I regret the decision to go back to performing non-condom. As a leader in the business, I feel somewhat responsible for these people. If I can, I will make it my legacy to speak out and let performers know that they don't have to listen to people whose lives and health are not at risk. They are the ones that have the power.”

Byron, who recently took over writing for the industry gossip blog Adultfyi.com, said he reached his conclusion about condoms because “testing can’t be trusted,” the business is now more global and it’s impossible to regulate someone’s actions off the set.

“A test is only good the day you take it and everybody knows it,” Byron said. “Without a condom, a test is meaningless.”

According to Byron, the “cold, hard fact is that there is no ‘performer choice’” when it comes to condoms.

“If a performer decides to use a condom, they do not work,” Byron said.   

Glenn King, a producer/director who owns Mean Bitches Productions which is distributed by gonzo porn heavyweight Evil Angel, told XBIZ he requires condoms in every scene that involves intercourse. But if they were not mandated by law, King would offer performers a choice.

“Like any small business, we try to make our best efforts to abide by all laws,” King said, adding that condoms are not good for his bottom line.

“Let’s be realistic here: Condoms hurt sales. Like any form of entertainment, pornography is about creating visual fantasies. When most people fantasize about their dream sex, they don’t picture themselves wearing a condom.” 

King continued, “My preference would be to tell the performers before each scene, ‘My recommendation and the recommendation of OSHA today is that you use condoms in this scene. It will provide a higher level of safety for you. But as performers, it is your choice. If you want to decline this protection, sign here.’ And then they would sign a document acknowledging that it’s their decision. Of course, both performers would have to decline for us to shoot the scene without condoms.”

Ivan, a veteran producer/director, told XBIZ that condom use “should be really up to the performers but producers as well.”

“For years, all I've been told by my ‘gonzo’ company bosses is that condoms in gonzo porn will kill sales,” Ivan said. “It's true, gonzo and porn in general is a naughty fantasy. It's not so naughty and dirty and risque if it has a condom on it.”

Veteran director/performer Miles Long thinks that any policy on condoms “should be determined by our industry and the people in it.”

“One of the things I have always noticed about government policy is that it always seems to be written by people who have nothing to do with the industry that the policy is supposed to regulate,” Long told XBIZ. “To me, that seems to be the worst common-sense way to implement any policy. That's like having a layperson tell racecar drivers what is safe for them to do or not do on a track. They don't have the experience or the knowledge to offer any guidance or make any determination on what should or shouldn't happen.”

Regardless whether Measure B survives Vivid’s legal challenge, AB 640 passes the legislature or there is a variance that alters California’s Standard 5163, the one constant remains: the porn industry itself remains clearly divided on the issue of condom use.

Even almost a year after Measure B passed in the porn epicenter of L.A. County, the nature of new porn being released has been virtually unchanged. Many studios have taken steps to shoot their new movies outside of L.A. County, while dozens of others have quietly continued to shoot porn without condoms behind closed doors.

The reality is that the prospect of county or statewide enforcement of condom use presents a logistical nightmare for officials who most likely would prefer to use their time tackling issues more pertinent to improving the quality of life for the citizens of Los Angeles and the state of California. 

In the meantime, porn performers can choose to stick to their own personal policies for condoms, adhere to a studio’s policy if it differs from theirs, or opt out of the scene before it begins. It’s their body and it’s always their choice.