Porn Industry Paper Blasts New York Times Coverage

Last week, The New York Times published a piece about the ongoing debate about condoms use in pornography production. Now, a reporter on the inside is calling bullshit.

Adult Video News' senior editor and chief legal analyst Mark Kernes wrote to the Times, accusing them of glaring factual inaccuracies and misrepresentations. (AVN's website is NSFW, so we're reproducing the letter in full below.) Among the story's problems, he writes:

  • It fails to note that the industry-run clinic "abruptly shut its doors" because it was served with a cease and desist order, which Kernes says was illegal.
  • It obscures the fact that the source of infection for an HIV-positive performer hasn't been conclusively determined, but linking it to the industry anyway.
  • It inaccurately says Los Angeles will take over performer testing.
  • Also, this is a big one: The Times story says a supposed "city law would be the first to impose safety standards specifically on the pornographic film industry, which has largely been allowed to police itself." But Kernes says, "There is currently no legislation proposed that would impact the 'safety standards' of the adult movie industry."
  • The Times says "string of actresses" have "contracted HIV and filed lawsuits against production companies." Kernes says, "Just one actress (stage name Brooke Ashley) filed suit...NO other suits have been filed against production companies due to HIV infection."
  • The industry hasn't actually imposed a rule not to hire someone whose tests have expired, contra the Times.

And so on. These issues appear to go beyond the beat reporter's disdain for a high-level writer parachuting in, or any particular agenda when it comes to this fractious debate. So far, the Times hasn't responded.

To the Editor,

I normally respect The New York Times' coverage of events, but there was so much incorrect in Ian Lovett's article "Condom Requirement Sought for Sex-Film Sets" that I have to question whether he did any research at all?

The errors begin with the first paragraph, where he claims that the AIM Healthcare Foundation, the primary testing facility for adult performers, "abruptly shut its doors in December." Mr. Lovett makes it sound as if this shutdown was voluntary, where in fact the clinic was served with an illegal "cease and desist" order from the Los Angeles Department of Public Health after the California Department of Public Health had given AIM 60 days from November 30 to supplement its application to the agency to become a licensed clinic. (AIM subsequently abandoned that route and became a medical corporation responsible, as the article correctly notes, only to the California Medical Board.)

Next error, paragraph 2: Los Angeles has NOT moved to fill AIM's role in performer testing, though it has been clear for at least two years that they desperately WANT to do so, thinking that it will bring a large influx in income to the city-which it won't. But the city has no current plans to open any performer testing facilities, and in fact has not done so.

Paragraph 3 implies that AIM's closing was somehow connected to the performer who tested HIV positive in October, when in fact that performer allegedly became HIV positive on a gay porn set where condom use was mandated, and AIM picked up his HIV positive status at his next regular monthly test. The exact reason that performer became HIV positive is still under investigation, and the possibility that he contracted the disease through personal contact in his private life-he posted ads on the internet as a "male escort"-is considered likely.

Contrary to statements in the article's 6th paragraph, there is not currently any legislation being considered by the Los Angeles City Council which would "impose safety standards specifically on the pornographic film industry." The bill which just passed calls on the City Attorney to determine if the City Council (or the City Attorney's office) has the power to force the agency which provides filming permits to all movie producers filming in the Los Angeles area to refuse such permits to adult producers unless the producers guarantee that the movie(s) being filmed will require that their performers use condoms during sex scenes. The City Attorney has been given 45 days to complete his study, and the City Council may take action as a result of his report, but there is currently no legislation proposed that would impact the "safety standards" of the adult movie industry.

Contrary to statements in the article's 7th paragraph, there has not been a "string of actresses" who "contracted HIV and filed lawsuits against production companies." Just one actress (stage name Brooke Ashley) filed suit, and it was with the California Employment Development Department, seeking to force the producer of the movie wherein she caught HIV (in 1998) to provide her with unemployment compensation benefits as a result of her infection. She recently won that case. NO other suits have been filed against production companies due to HIV infection.

Contrary to statements in the article's 8th paragraph. adult producers have NOT "agreed not to hire performers who had not been tested in the last 30 days," much as many members of the adult industry wish they would. While it is true that MOST producers will not hire a performer with an "expired test" (one that is more than 28 days old), several have no problem doing so. Fortunately, most PERFORMERS will not work with another actor whose test has expired ... but that's not what Mr. Lovett wrote. Moreover, AIM doesn't "hound" performers who had possibly been exposed to HIV to get them tested; it simply informs them that they should come in for such testing, and keeps a record (accessible only to movie producers) of whether they have done so, and when.

Contrary to statements in the article's 10th paragraph, there have NOT been "just five cases of HIV infection among its performers ... since a 2004 outbreak shut down the industry for a month"; there have been just five cases INCLUDING the 2004 outbreak, and contrary to Mr. Lovett's assertion, three of those infections in 2004 were unquestionably due to on-set exposure. One further infection in 2009 was unquestionably NOT due to on-set exposure, and as mentioned earlier, there is some question whether the 2010 infection was set-related.

Contrary to the implications of the article's 14th paragraph, AIM continued to arrange for performers' HIV and STD tests during the period when the clinic itself was not open; it simply arranged for the performers' blood and urine samples to be drawn by outside physicians and clinics, but the results of those tests were disclosed only to AIM and to the performers themselves, and became part of AIM's producer database as well, a practice to which performers voluntarily agree when tested.

The adult industry continues to question the STD infection statistics promulgated by the Los Angeles County Department of Public Health, and AIM is currently in the midst of a self-initiated audit of its records to prove that the County has wildly inflated performers' infection rates, which are at most 2.4 percent of the performer population during a "bad month," and 1.8 percent during a "good month." The idea that "a quarter of all performers each year" are diagnosed with a sexually-transmitted disease is ludicrous. The reason for the discrepency is that not only does the County count original infections in its statistics, but also each time a performer returns to the clinic to be retested before the disease has fully cleared his/her body-which performers frequently do since they are generally anxious to get back to work. Hence, the County statistics improperly record an original report of infection as well as perhaps four or five retests within the following two weeks as if there were five or six original infections.

The County's flawed statistics seem to have inspired the anti-AIM vendetta by AIDS Healthcare Foundation's (AHF) Michael Weinstein, but if Mr. Lovett had done even a bit of investigation, he would have discovered that AHF is funded in part by the condom industry, and that AHF's own HIV testing program, which uses one of the "10 minute" antibody tests for HIV, is itself seriously flawed, and can produce negative results in HIV-positive test subjects for as long as six months after infection. That's why the adult industry abandoned antibody testing in 1998 as being insufficently timely and accurate for commercial sex work. It has also been rumored that AHF itself would like a piece of what it sees as the "lucrative" field of performer STD testing.

In Mr. Lovett's 22nd paragraph, he refers to "Previous efforts to pass legislation that would specifically require condom use." There have been no such legislative attempts, although a reading of the California Health Code, in a section that was originally enacted to protect hospital workers, implies that not only condoms but also dental dams, rubber gloves, goggles and face shields may be required for on-camera sex scenes. This portion of the Health Code has been the subject of five public hearings so far between Cal/OSHA and the adult industry, and is far from being resolved.

Perhaps the next time Mr. Lovett decides to write about the adult movie industry, he might want to speak to some people who have actual working knowledge of the medical and legal issues involved.

Regards,

Mark Kernes, Sr. Editor, Adult Video News (AVN)

AVN Editor Calls Out NYTimes On Condoms In Porn [AVN]
Related: Condom Rule Sought for Sex-Film Sets [NYT]