On July 16, 2009, the AIDS Healthcare Foundation and Michael Weinstein petitioned the Los Angeles Superior Court for a writ of mandamus directing the Department of Public Health (DPH) to enforce California Health and Safely Code sections 120575 and 120 175 by requiring all performers to use condoms in the making of hardcore pornography in Los Angeles County.
Petitioner AIDS Healthcare Foundation (“AHF”) is a California nonprofit corporation. AHF is the nation’s largest private provider of HIV/AIDS medical care. … In addition, AHF operates the largest private HIV/AIDS and sexually transmitted disease testing and prevention program in California.
[A]n epidemic exists. County health officials have acknowledged it, documenting thousands of cases of sexually transmitted diseases among performers over the past five years. The spread of disease among performers in pornography endangers both the performers themselves and the public at large, due to the transmission of disease from performers to their sexual partners inside and outside the industry. Despite a ministerial duty to take all reasonable measures necessary to prevent the transmission of these diseases. officials with the Los Angeles Department of Public Health have done nothing to combat this known, serious health threat to the people of Los Angeles County, needlessly placing thousands of people at risk of disease and death.
DPH has cited numerous figures confirming an epidemic of sexually transmitted diseases among performers in adult films, including the following:
a. Performers in hardcore pornography are ten times more likely to be infected with a sexually transmitted disease than members of the population at large;
b. There were 2,013 documented cases of chlamydia among performers between the years 2003 and 2007;
c. There were 965 documented cases of gonorrhea among performers in the same period;
d. Many performers suffer multiple infections, with some having four or more infections over the course of a year;
e. In the period of April 2004 to March 2008 there have been “2,847 STD infections diagnosed among 1,884 performers” in the hardcore pornography industry in Los Angeles County.
DPH acknowledges that condoms are “[h]ighly effective in preventing HIV and other STDs” and would “likely have prevented all 3 female cases of HIV [in the industry] in 2003.” PPH asserts that condoms are used in less than 20% of heterosexual adult films, and that performers in heterosexual adult films who insist on using condoms can be banned from work.
DPH has observed that, without a legal requirement to use condoms in the production of adult films, performers are “effectively denied choice” to protect themselves because there is “too much economic pressure not to use, fear of being asked not to work again.” DPH is aware that industry efforts at self-regulation, including use of HIV testing, have not reduced the number of STD infections. DPH has noted that a year after the 2004 outbreak of HIV among hardcore pornography performers in Los Angeles County, the industry’s practices remained “mostly business as usual.”
There were no widespread changes in industry norms regarding the use of condoms, work practices during sex scenes, or industry training and education ofperfonners in the avoidance of sexually transmitted diseases, including HIV. California Health and Safety Code section 120575 provides that “[i]t is the duty of local health officers to use every available means to ascertain the existence of cases of infectious venereal diseases within their respective jurisdictions, to investigate all cases that are not, or probably not, subject to proper control measures approved by the board, to ascertain so far as possible all sources of infection, and to take all measures reasonably necessary to prevent the transmission of infection.”
DPH has failed to take “all measures reasonably necessary to prevent the transmission of infection” within the adult film industry. In fact, DPH has done nothing to prevent the transmission of disease in the production of pornography, tlnls allowing a significant public health risk to remain completely unchecked.” Pursuant to Health and Safety Code section 120175, DPH has a non discretionary ministerial duty to take reasonable steps to stop the spread of “contagious, infectious or communicable diseases,” including sexually transmitted diseases. DPH is aware of cases of infectious venereal diseases within its jurisdiction that are being spread due to practices within the hard core pornography industry. DPH has failed to take “measures as may be necessary to prevent the spread of the disease or occurrence of additional cases” within the adult film industry. In fact, DPH has taken no measures to prevent the transmission of disease in the production of hardcore pornography.