[Ed. Note: This is the third part of AVN.com's in-depth coverage of the public hearing on health and safety issues. The article begins here. The second part can be found here.]
One particularly gratifying aspect of the proceedings, from the industry point of view, was the near-universal acclaim for the work being done by Mitchell and AIM. However, the next speaker seemed to take issue with one of Mitchell’s statements, where she said, “Five cases do not an epidemic make, although tragic.”
“Picture us on the other side of the mountain, over in Westwood, holding a hearing on five nurses becoming infected with HIV at UCLA,” imagined Dr. Thomas J. Coates, a professor at the David Geffen School of Medicine of the University of California. “I assure you, all hell would break loose. So I guess I get a little disturbed when I hear people saying, ‘Well, gee, it isn’t much of an outbreak; it’s only five people.’ It’s five people who now have a lethal disease that they shouldn’t have had.”
“I do applaud the work of AIM,” he added quickly. “I like the work of those kinds of grassroots organizations, and I think the work that they’re doing is fantastic and should be supported, should be encouraged and should be continued.
“If the standard is harm elimination, then the only way to achieve harm elimination is by not allowing intercourse,” Dr. Coates noted, “because once a penis enters a vagina, a rectum or a mouth, then transmission is possible, and even though condoms are highly safe and highly effective, they’re not 100 percent effective.”
Given the reality of adult features, however, what Dr. Coates proposed were several harm reduction strategies, which included no ejaculation into a body cavity or on a mucosal surface; mandatory use of herpes-suppressing medications; use of condoms during intercourse after an initial non-condom penetration shot; liberal use of lubricants; use of the “female condom” which has become popular with women in some African countries; and more frequent testing.
“Maybe what we should do is ask all adult films to carry the disclaimer, ‘Do not try this at home as it could be hazardous to your health,’ as you see on various stunt films,” he added. “We do know a lot of people are learning how to have sex these days through adult films and other such media.”
Fourth Panel: Additional Constitutional and Policy Concerns
Assm. Koretz had asked that someone be present to address the First Amendment issues that might arise if condoms and/or testing were required in the making of adult features, and Martha Matthews, an attorney with the American Civil Liberties Union (ACLU), responded to the request.
“The ACLU was asked to comment on whether it would violate the First Amendment to require actors in adult films to follow safer sex practices such as the use of condoms,” Matthews summarized. “Unlike worker safety regulations in other industries, such a requirement raises free speech issues because it regulates filmmaking which a medium of expression protected by the First Amendment.
"As a result, if this was ever litigated, the courts would be likely to apply what’s called strict scrutiny, meaning that a regulation requiring condom use would only be lawful under the First Amendment if the state had a compelling interest, and if this regulation was narrowly tailored to further the state’s interest in protecting worker health without restricting any more expressive activity than necessary.
“This may be one of the rare circumstances where restriction on expressive activity would be permissible under strict scrutiny,” Matthews analyzed. “The state clearly has a compelling interest in preventing HIV transmission in the workplace, and requiring condom use and other safer sex practices is an effective way of addressing the state’s interest without restricting more expressive activity than necessary. It’s certainly less restrictive than prohibiting certain higher risk practices altogether.
“I should say parenthetically that when I say require condom use, I’m not talking about requiring depiction of condom use in the finished product,” Matthews added, apparently in response to Dr. Kerndt’s earlier suggestion. “It’s like you could require stuntmen to wear fireproof suits in mainstream films, but you wouldn’t prohibit the filmmaker from making it look like they were wearing ordinary clothes in the finished product. Film can be manipulated... I assume there are ways of making it not terribly conspicuous that somebody’s using a condom.”
Another panelist was Michael Weinstein, president of the AIDS Healthcare Foundation, which is the largest AIDS organization in the U.S., with 21 clinics and 120,000 clients around the world... and even with that level or expertise, Weinstein found it appropriate to laud AIM.
“I also want to salute AIM for the work they’ve done. AIDS Healthcare Foundation, which has tested in sex clubs and other high-risk venues, has worked with AIM in some of these areas, and we certainly admire the work that they’ve done.”
Later, he added, “It’s really hard to imagine a better set-up than to have a group that grew out of the adult film industry itself. It seems to me a lot of the success of the prevention programs is that they’re accepted and integrated into the milieu.”
Weinstein spoke to one issue that had only been touched on by other speakers: The different reactions of the gay and straight communities to condom use in videos.
“In the gay porn industry, the overwhelming majority of people use condoms, and so the question is why?” Weinstein asked. “And the reason is, condom use was the community norm in the gay community in the late ‘80s and early ‘90s. And why was that? Because the gay community had been through a holocaust and therefore using a condom did not seem like a very high price to pay when you were watching your friends and loved ones die all around you. Essentially, the issue of condom use in films is a reflection of condom use in society, and unfortunately the community norm in the gay community is eroding and it is nonexistent among heterosexuals.”
But while Weinstein was much in favor of pro-condom “public service announcements” at the start of adult videotapes, he was leery about requiring their use in the making of the features.
“There is no precedent in any state law for mandating the use of condoms,” Weinstein noted, “and I feel we should be careful before crossing that threshold... In the end, prohibition [of non-condom sex] does not work.”
For his part, Assm. Koretz clearly was paying attention to the speakers, and usually had intelligent questions for the panelists after they’d completed their presentations. One issue he wanted more information about was whether it would be legal to exclude HIV-positive actors from performing in sexually explicit videos.
“There’s actually parallel situations in the healthcare profession,” Matthews responded, “and there’s quite a bit of ADA [Americans with Disabilities Act] litigation about when someone is HIV-positive and fired from their job, and in most of it – I’m sure there are cases all over the place on this, but if there are precautions that are effective in significantly reducing the risks, it is illegal to prevent someone from working because they’re HIV-positive. So it would depend on a lot of things, about how significant is the risk even if you wear a condom and so forth, but I think there would be legal problems with banning someone from an otherwise legal employment because of their HIV status.”
Cont. here.
