State, County May Require Condoms in Adult Films

After almost a year of urging the adult-film industry to require actors to wear condoms during sex scenes, state and county officials say the recent HIV infection of two porn stars has given them the leverage they need to force change.

State and Los Angeles County health officials said Monday they believed existing regulations gave them the authority to require adult-film actors to use condoms, and the state Division of Occupational Health and Safety plans to begin inspections this week, marking the first time Cal/OSHA has investigated the adult-film industry.

Industry lawyers dispute the agency’s legal authority, and some industry officials say pornographic movie production would move out of state if condom use were required.

Although a few California adult-film producers have voluntarily switched to condom-only productions, the majority of producers and distributors have balked at doing so. It is conventional wisdom within the multibillion-dollar industry -- which employs more than 6,000 people in California, including about 1,200 performers -- that using a condom doesn’t pay.

“It’s market forces,” said Mark Kulkis, president of Kick Ass Pictures, a production company based in downtown Los Angeles that specializes in fetish films. “The bottom line is, customers don’t like [to see] condoms.”

He likened adult-film performers to Hollywood stuntmen and women.

“When you see an action movie and you see the hero jumping out the window, you don’t want to see the wires holding him up,” Kulkis said. “Nobody wants to see condoms. It’s a fantasy.”

Until last week’s HIV outbreak, which spurred a temporary industrywide production shutdown, only two of 200 adult-film production companies in Southern California were condoms-only, industry insiders said. About 17% of the performers use a condom regularly.

David Joseph, president of Red Light District, a Chatsworth-based production company that specializes in hard-core, “gonzo” films that do not use condoms, was one of several representatives of production companies who said that if the state required condom use by sex actors, they would leave California. Other industry insiders predicted that filming would move underground.

But state and county officials say condom use is an important health and workplace issue.

“You couldn’t imagine a construction company sending a person to a work site without a hard hat, and nor should we think of someone in an adult-film industry production company working without a condom,” said Peter Kerndt, director of the sexually transmitted disease program for the Los Angeles County Department of Health Services. “I look at this strictly as an employer-employee issue.”

Kerndt said he expected resistance to mandatory condom use and agreed that some adult filmmakers would leave the state. But he cites a previous success in setting standards for the industry, pointing out that producers rigorously screen out underage actors because of the threat of closure, fines and incarceration.

“Some of the big players won’t move” out of state, he said. “What we’ve learned is that, if you can set the standard with those folks, you can generally make an enormous amount of progress,” Kerndt said.

Monday afternoon, Kerndt, on behalf of the county, asked Cal/OSHA to investigate the production companies where Darren James and Lara Roxx, the two infected actors, have worked.

Until now, the agency has spent much of its time monitoring the construction and agricultural industries, in which the majority of workplace deaths and injuries occur, said Cal/OSHA spokeswoman Susan Gard.

Also, Gard said, Cal/OSHA generally responds to complaints about workplace hazards, and so far no adult-film actors have filed complaints.

But now that the agency is getting involved, it has two main regulations that would apply to the porn industry: illness-prevention program requirements and the blood-borne pathogen standard, Gard said.

The illness-prevention program requires employers to have written policies on reducing workplace hazards. The blood-borne pathogen standard requires use of universal precautions by people who come in contact with semen, vaginal secretions, blood and other bodily fluids that may transmit diseases.

“If you think of nursing or the healthcare industry, they have to use universal precautions,” Gard said. “That means you always use a rubber glove when they draw blood.”

In addition to a condoms-only policy, enforcement of existing state regulations would require porn producers to bear the costs of any testing, vaccinations and medical care associated with their employees in the workplace, Kerndt said. It would also mean an end to practices in some pornographic movies that involve contact with semen.

Last year, the county health department issued a report concluding that the porn industry posed a health risk to its workers and the general population. Health officials at that time recommended that the Board of Supervisors ask state officials to develop regulations that would require adult-film actors to use condoms and be tested for a variety of communicable diseases, including HIV and hepatitis.

Since that time, county and state officials have been working with adult-film industry representatives, but news of last week’s infections gave the effort to require a condom-only policy new momentum.

Rather than requiring condoms, the industry requires performers to undergo testing for HIV and other sexually transmitted diseases every month.

Although the porn industry has been diligent about such screening, that requirement alone does not meet state regulations, Gard said.

Kerndt agreed. “As good as [HIV testing] has been, we never believed it would always work,” he said. Last week’s HIV discovery “shows what I consider is a complete failure -- and a tragic failure -- that these people have become infected needlessly.”

Since James and Roxx tested positive for HIV last week, at least 49 others who worked with them or their sex partners have been identified as being potentially affected.

The effort to regulate the industry faces several difficulties. The last time there was an outcry demanding safe-sex practices came in 1998, when several actors tested positive for HIV. But the clamor soon died down.

Moreover, regulators will need to overcome arguments by the industry that porn actors are not employees, but independent contractors, Gard acknowledged.

On many productions, actors sign statements declaring themselves to be independent contractors. Cal/OSHA’s regulations only govern conduct between an employee and his or her employer, not between an employer and a contractor.

“We will have to establish an employer-and-employee relationship exists, but clearly in many of these situations they are” employees, she said. Even when actors sign statements declaring themselves to be contractors, state law does not allow them to waive their basic rights as employees, she said.

Some believe fear of an AIDS epidemic has the potential to transform industry practices without state intervention.

Adam Glasser, an industry veteran, said that once he resumes filming, he will require the use of condoms for any scenes involving vaginal or anal penetration, but not for oral sex.

“I think it’s my responsibility to minimize the risk that performers experience on my sets,” Glasser said. “This is one way of doing that....I look at it as a challenge to make condom movies appealing.”

He and others point out that the industry has had few documented cases of HIV transmission in the last few years.

“The record is pretty good. The reality is, it’s not like the system is broke and someone’s got to fix it. The system’s worked pretty well,” Glasser said.