SAN FRANCISCO—Cybernet Entertainment LLC and its subsidiaries Kink.com, Kink Studios LLC, KinkMen.com and Armory Studios LLC, as well as Peter Acworth and director Van Darkholme individually, have been sued by a performer identified only as "John Doe" for allegedly having failed to protect Doe from contracting HIV on the set of a KinkMen.com shoot in 2013.
"On March 26, 2013, Plaintiff was emailed by Mike Scott from KINK.COM requesting that he take part in a May 3, 2013 video shoot," one section of the Doe Complaint, which was filed on April 28, reads. "The email explicitly stated the following, "This is a condom and barrier protection required shoot." [Emphasis in original.]
Doe, who's worked for Kink since 2011 and describes himself as a "bottom," goes on to claim that he contacted Kink.com's talent coordinator Bobby Sanchez about performing in the May 3 shoot, and that Kink paid his plane fare to attend the taping.
"The May 3 shoot was a special, annual public event called the 'Rubber Party,' in reference to the liquid latex which was poured over the models' bodies...," the Complaint states. "A much larger than average number of 'guests' or members of the public were in attendance to partake in the shoot. While there were seven models who performed at the May 3 shoot, there were on average between 30-40 members of the public who also participated in the shoot."
Doe further claims that the "guests" were allowed to participate in the sexual activities with the models such as himself, and that those individuals were not tested for STDs before taking part in the shoot—and that Doe would be paid an extra fee for each member of the public with whom he interacted during the shoot.
"While Plaintiff was physically restrained and blindfolded, Defendant DARKHOLME is clearly seen on video footage forcefully pushing Plaintiff's head and mouth into the penises of dozens of men to perform oral sex on them," the Complaint continues. "None of these performers were wearing a condom nor were any barriers used. ... During the May 3 shoot, the inside of Plaintiff's mouth sustained a cut. Plaintiff took a sip of water and noticed some blood in his smouth. Plaintiff did not mention this to Defendant DARKHOLME. Since Plaintiff's requests of no oral sex and condom usage had been denied in the past by Defendants, Plaintiff knew that similar requests would be denied on this occasion."
Doe further states that about two weeks after returning from the shoot to his home in New York City, he began to feel ill, went to a doctor and got tested for STDs, and about two weeks after that "was devastated to learn that he was HIV positive. ... Through a meticulous process of elimination and based on expert medical advice, Plaintiff JOHN DOE determined that he had contracted HIV at Defendants' May 3, 2013 shoot."
Beyond those specific allegations, Doe makes a surprising number of other claims about the practices during Kink shoots, including that actors in gay shoots, in contrast to straight ones, were not required to be HIV tested before performing, although he admits that Kink's rules state that anyone may request to use or have their partner use a condom at any time—a practice Doe claims was violated at least once during his tenure as a Kink performer.
Another clause of the Complaint states that, "KINK Defendants failed to report Plaintiff JOHN DOE's diagnosis to the AIDS Healthcare Foundation (AHF), Cal/OSHA or the Free Speech Coalition. Had KINK Defendants notified any of these entities, as they would have if it were a heterosexual shoot, a moratorium on filming in the porn industry would have occurred, requiring all sex workers to be tested for HIV before filming would resume."
Doe then mentions that he contacted AIDS Healthcare's Mark McGrath, who he says helped him file a complaint with CalOSHA, and the current Complaint goes on to cite several other claims of HIV transmission on Kink sets: "In the following months, beginning in August, four more performers in California would be diagnosed with HIV. At least two of those workers have traced their infection back to their work with the KINK Defendants." No mention is made of the fact that the infections of those two performers—Cameron Bay and Patrick Stone—had been investigated and were found not to have occurred on Kink sets, while the other two allegedly infected persons are not identified at all.
Doe also talks at length about citations issued to Kink by CalOSHA for alleged failure to follow the "Engineering and Work Practice Controls" of Health Code Sec. 5193, but fails to mention that CalOSHA, at a later hearing, dropped its claim that there had been STD transmission on that Kink set.
In any case, Doe is suing the named defendants, as well as "Does 1-50," for negligence in allowing him to become infected and Intentional/Fraudulent Misrepresentation for stating that the May 3 shoot would be condom-mandatory, as well as that the defendants conspired "to make intentional misrepresentations to Plaintiff" (like that condoms would be required for the May 3 shoot); that the defendants violated Doe's contract with them by not acting in "good faith" with "fair dealing"; that Kink management failed to properly supervise Darkholme during the shoot; that some of Kink's employees for the May 3 shoot—specifically Acworth and Darkholme—were "unfit" for their positions "and that this unfitness created a particular risk to others, including Plaintiff"; and that the defendants committed "Intentional Infliction of Emotional Distress" on Doe. For all of this, Doe is seeking an undetermined amount of money for his injuries, his emotional distress and as punitive damages.
"Despite the sensational nature, the case is without merit," said Kink.com attorney Karen Tynan. "The plaintiff has previously filed similar claims under worker's comp, and these were denied by the insurance company. As such, we expect it to be dismissed in civil court as well. None of these claims were made at the time of the shoots, and are easily refuted by detailed shoot records, our regular protocols, testimony from those present, email correspondence, and the videos themselves. As the plaintiff mentions, we have a strong reputation within the industry for both worker safety and professional ethics; unfortunately, because of the nature of BDSM, we're also more vulnerable to complaints like these that seek to play out in the court of public opinion.
"It’s perhaps no coincidence that a previously dead case suddenly surfaces a few weeks before an OSHA Standards Board hearing on May 21," she added. "AIDS Healthcare Foundation has been touting this case for several years, but the facts never seem to bear out. For it to suddenly surface as civil litigation with explicit mention of AHF in the court documents would certainly point to this being a political maneuver, as opposed to one with any real chance of success."
A copy of the John Doe complaint can be found here.
