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The full story, however, is a lot more complicated than that.

For the past few years, an industry-wide battle has been raging over the mandated use of condoms in porn.  On Monday, the battle began anew when reports surfaced that two male adult performers had tested positive for HIV after shooting bareback, or unprotected, sex scenes.

According to the California Department of Public Health, the first performer contracted the virus while shooting a scene in Nevada. He had tested negative before the first shoot, but during a second, he had “symptoms of a viral infection,” an alert stated. At a clinic, “another blood test that showed he had recently become infected with HIV.” A performer who worked with him has also tested positive.

Because the film shoot did not include condoms, Michael Weinstein, president of the AIDS Healthcare Foundation and longtime advocate of condoms in porn, sees the report of HIV transmission as an argument for  Measure B, the 2012 law that requires performers to wear condoms on set.

“It’s happened before, it’s happened now, and it will happen in the future,” Weinstein told the Associated Press. “The big lie the industry has been saying all these years, there are no on-set transmissions, has been proven to be untrue.” (Weinstein is referring to an oft-cited stat from the industry lobbying group Free Speech Coalition that there has been no on-set transmission of HIV in adult film since 2004, when performer Darren James tested positive for the virus. Neither the AHF nor the Free Speech Coalition responded to requests for comment.)

“The state’s response this week is clear evidence that an entirely state run system wouldn’t work.” —Lorelei Lee

Looking closely at the alert, the story gets a bit more complicated. For starters, the gay and straight porn industries use different testing standards: While straight performers rely on PASS (Performer Availability Screening Service) testing to screen for HIV and other STIs, gay performers typically use condoms.

The performer who contracted HIV shooting a bareback scene was not using condoms. He contracted HIV on a “non-compliant” shoot, meaning it took place out of state and outside industry testing standards. Specifically, he was not tested according to the industry PASS testing system, which offers a seven-to-10-day window between exposure and a positive result.

Instead, the performer used an ELISA test, which has a three-month window following HIV exposure. The use of ELISA tests on adult sets in the United States is an “infrequent anomaly,” according to adult performer Lorelei Lee. In the industry, the PASS testing system is widely considered the most effective means of screening for HIV. (There are some, however, who have expressed skepticism toward the system, particularly the claim that testing is more effective than mandated condoms.)

“Should the industry get pushed underground, this is what you would have: An unregulated set that’s not following any strict protocols.”

The performer also contracted HIV on in Nevada, a fact that is not insignificant from an industry perspective. Since Measure B was approved by California voters in 2012, porn producers have been threatening to move production to another state, with Vivid studio head Steven Hirsch hinting at an imminent move to Nevada. Shooting permit applications in California have been on the decline in recent years, from 485 in 2012 to just 40 in 2013.

Because the performer was shooting out of state and was not tested according to industry standards, this specific instance of HIV transmission should not be reflective of industry practices as a whole, said Chauntelle Tibbals, a sociologist who studies the adult industry.

“Part of why the industry has been clear of HIV on-set transmissions, given the frequency of opportunity and the number of partners performers have, has to do with people participating in the [testing] system,” said Tibbals. “The idea that a random scene that is operating outside the professional industry can be used as a comment on [the condom mandate] is ludicrous, and it reflects a misunderstanding of the dimensions of the industry.”

The fact that shoots have been moving out of California and beyond its regulations is cause for concern among porn performers and producers, says one industry insider who did not want to be named. As production has dispersed, he told me, producers are becoming more lax about registering for shoots or following a guided set of protocols. “Should the industry get pushed underground, this is what you would have: An unregulated set that’s not following any strict protocols,” he said.

That said, some are skeptical of the idea of there being an in-state “industry protocol” or testing standard to begin with. “There are different standards for different studios. If you have a studio in Pennsylvania, they’re not gonna obey some general industry standards in L.A.,” said Conner Habib, an adult performer and vice president of the Adult Performer Advocacy Committee (APAC). “They’re gonna do their own thing. … We could on one hand say there should be laws to regulate that, but on the other hand that kind of stuff is going to happen whether you regulate it or not.”

Although the California Department of Health declined to comment to the AP about the timeline of the HIV transmission, multiple sources told the Daily Dot that the performer in question contracted the virus during a September shoot and tested positive for HIV back in October.

After he tested positive, the FSC issued a moratorium on production, as is standard practice when a performer tests positive for HIV. The last production moratorium was issued last August, after a performer tested positive for HIV; the test was later revealed to be a false positive.

Now adult industry insiders are wondering why the California Department of Public Health released a “current” public health alert a month and a half after the moratorium was issued. “This is something the industry responded to within hours,” Lee told me in an email. “The fact that it has taken the state [months] to respond shows exactly why I and other performers do not want the state running our health and safety protocols.”

Lee and other porn industry insiders believe the California Department of Public Health’s slow response to the HIV transmission proves the government shouldn’t be regulating the porn industry and forcing performers to wear condoms.

“We know that for some performers, condoms are the best choice. For some performers, testing with the PASS system is the best choice,” Lee wrote in an email to the Daily Dot. “All performers should have access to both. … The state’s response this week is clear evidence that an entirely state run system wouldn’t work. If we had waited for the state to respond to this situation, how many transmissions could have taken place within the last 90 days?”

That said, not everyone in the industry believes that state regulations would be a bad idea, or that the recent case of HIV transmission isn’t reflective of the industry as a whole. “This is a very clear shot across the bow of the adult industry,” industry blogger Mike South, who has gone on record defending the porn condom mandate, wrote in a recent post (NSFW). “What it immediately does is dispel the myth that testing is enough.  It also dispels the bullshit about no on set transmissions in ten years.”

While the question of whether performers should wear condoms in porn is certainly up for debate, this recent instance of HIV transmission proves something that performers, industry insiders, and legislators can likely all agree on: To protect the safety of performers, across-the-board testing standards and regulations are required in some form. What form such rules will take, however, remains an open question.

Lee wants performers and California legislators to work together to come up with regulations that would “both unify the industry and ensure that performers have information and access to the best possible options for HIV prevention, while protecting our right to choose what we do with our own bodies.” 

Habib, however, thinks it’s not so simple. “The thing that makes the most difference is creating a better culture for performers, and teaching them how to protect themselves so they can make their own sexual health choices,” he said. “It’s not a question of a law that says, ‘Put a condom on every penis.’ The work has to be a broader cultural work. It’s a lot harder.”

Photo by Rorro Navia/FLickr (CC BY ND 2.0)

EJ Dickson

EJ Dickson

EJ Dickson is a writer and editor who primarily covers sex, dating, and relationships, with a special focus on the intersection of intimacy and technology. She served as the Daily Dot’s IRL editor from January 2014 to July 2015. Her work has since appeared in the New York Times, Rolling Stone, Mic, Bustle, Romper, and Men’s Health.