On Tuesday, Californians will vote on Proposition 60, a proposed law that will require all adult entertainers working in the state to wear a condom while filming explicit scenes. The measure is being pushed by AIDS Healthcare Foundation President Michael Weinstein to stop the spread of HIV in the porn industry, even though there hasn't been an outbreak of the virus among adult entertainers in 12 years. Measure B, which was voted via ballot initiative in 2012, already mandates condom use among porn actors filming in L.A. County, but it isn't enforced. Proposition 60 would remedy that by conscripting consumers to act as whistle-blowers if they see the law being violated in an adult film.
Adult entertainers have warned that Proposition 60 amounts to a witch hunt — one that effectively places a bounty on their heads. "You're incentivizing the viewer to sue us," actor Tommy Gunn argued in an interview with the Hollywood Reporter.
In truth, Proposition 60 is a reflection of the ways in which people living with HIV are stigmatized, persecuted and policed across the country. Currently, 33 states have laws on the books that make it a crime to expose a partner to the virus. In 28 states, it's even a felony to do so. This might sound like a reasonable idea, one that advocates safer sex between individuals, but criminalizing HIV actually serves to force people further into the closet. How the U.S. legal and political system treats HIV is unsafe, unjust and overdue for reform, and the passage of Proposition 60 would only make the problem worse.
Like a majority of people prosecuted under HIV-exposure laws, Leslie Flaggs didn't give the virus to her partner. In 2007, she was in a relationship with a man who frequently beat her. After neighbors called the police during a domestic dispute, he claimed that she didn't tell him she had HIV, even though that wasn't true. Flaggs claims she informed her partner shortly after the two began dating. She received a 25-year suspended sentence under Iowa law, as well as four years' probation. Flaggs will spend the next decade on the sex offender registry.
Fellow Iowan Nick Rhoades was undetectable, meaning that his viral load was so low that transmitting HIV was virtually impossible, when he was arrested on a charge of "criminal HIV exposure" in 2008. He was also wearing a condom when he engaged in sex with 22-year-old Adam Plendl. Rhoades nonetheless would spend 18 months in prison for the encounter.
Our laws around HIV are the product of a time when the public knew very little about how people got the virus. In 1990, the Ryan White Care Act, which offered states HIV funding under the condition that they criminalized transmission, included penalties for spitting, biting or scratching. AIDS United estimates that a quarter of people prosecuted for HIV transmission are charged for exactly those reasons, even though we now know it's extremely unlikely for the disease to be transmitted through saliva, bite marks or fingernails. Nonetheless, most of the laws enacted in the early '90s remain on the books today.
In 2008, 42-year-old Willie Campbell received a 35-year sentence for spitting on a police officer. The HIV-positive Texan's saliva was described in court proceedings as a "deadly weapon." David Plunkett had his conviction overturned by the New York Court of Appeals in 2012 after serving four years of a 10-year sentence for biting a police officer, but others won't be so lucky. Between the years of 2008 and 2015, at least 180 people were prosecuted for HIV exposure.
Although these laws are intended to stop the spread of HIV by putting the burden of responsibility on the person with the virus, they often serve to do the opposite. Because it's not a crime to spread HIV if you do not know you are positive, many choose not to get tested, in fear they are putting a target on their back. It's estimated that 1.1 million U.S. residents are currently living with HIV, and a fifth of them aren't aware of their status. In 2010, a White House task force on HIV/AIDS concluded that these laws force people with HIV into the dark, thus serving to "undermine the public health goals of promoting HIV screening and treatment."
If the porn world can learn anything from the justice system, it's that policing HIV simply doesn't work. HIV rates are continuing to rise in many communities, specifically among queer men of color. Creating additional legislation only furthers the stigma that keeps the disease alive at a time when it should be dying out, thereby encouraging a culture of silence and continued misinformation. What the porn industry should do is what many companies already mandate: safe, regular checkups to ensure a healthy workplace for their employees.
HIV isn't a crime, and treating it that way isn't the solution porn needs.
Nico Lang is the East Coast reporter for the Advocate. You can also read his work on Salon, Onion A.V. Club and the Guardian. Find him on Twitter @nico_lang.