Alexa: The substance of Sharon Mitchell’s testimony as reported at the O.C. Weekly and Rancho Cucamonga Voice are shocking in the extreme. But I want to make sure my point is clear:

Mitchell had to know that giving testimony in this case would reflect badly on the organization heads and the industry she represents. Even if she were convinced that a miscarriage of justice was taking place (dubious), she was in no way obligate to associate herself with the case.

In my estimation, prudence would dictate declining the opportunity to go on the record in relation to this case. Just what her calculus was in making a her decision to take the stand — let alone give the testimony she gave — is utterly beyond me.

“Matt and Khym are kinky swingers. They seem like an especially smart couple, the conscientious type who would use condoms outside of their primary relationship. But we never really know for certain what people do in their private lives, do we?

So, given your worry about the potential ease with which men could pick up an infection somewhere and pass it along to the female partners in a sex scene, I’m wondering if you ever have similar concerns about the couples in your shoots. Do you require them to bring up-to-date test results? I hope so. Because if you don’t require that, and you also don’t require condoms, your standards would arguably be lower than those in the main porn industry served by AIM. And if you do require tests, good for you, but it’s still unclear to me that your standards would be superior to those already in place.

I’m honestly confused about how you reconcile your desire for the extra safety of condoms in porn with the content of your own productions. Perhaps it makes sense to you because your approach is that of a documentary filmmaker, and you don’t ask people to do things differently than they normally would. Apparently these couples have decided to forego condoms in their own lovemaking, even though they all have sex with other people. I don’t have any judgments on that; I just think it’s a pity those types of negotiations aren’t addressed in the interviews.”

Dear YogaDame, I can’t speak for TC’s other subjects, but I can tell you about our experience working with him.

Short answer: Khym and I had been together, verifiably, for 17 years, when we met TC. We were hardly representative of the standard couple in adult film. I suppose it is possible that we could have been a pair of liars, intent on bamboozling him into letting us be the subjects…but we interacted with TC by email, phone, and in person many times before we filmed. A large amount of that time was spent establishing that we were a couple, and that we were only going to “perform” in ways in which we were totally comfortable.

Long answer: by the time we met TC, Khym and I were fairly well established in the SF sex-positive community, and fairly well-established on the internet as well. It was easy for TC to “check up” on us from many different angles.

The three of us discussed at length just how much of our involvement in the swinging/polyamorous/kink community was pertinent and appropriate to the film. Because the main thrust of our film was to depict that long-married couples can and do continue to treasure sex with one another, in spite of the challenges, difficulties, barriers, and distractions that life offers, we decided to stay “on message” as it were, and to stick with the bulk of our experiences.

This was not difficult, because at that point Khym and I had been open to kinky swinging, yet were a completely monogamous couple for 15 of our 17 years. Our experience in acting on our “non traditional” sexual interests was miniscule compared to our knowledge of living as a traditional monogamous couple. Khym and I were more comfortable addressing a subject in which we were very well-versed. The three of us decided that sticking with our main experience would be best and clearest in a feature that runs less than one hour.

And on a side note: if we’re going to be characterized by a stereotype such as “kinky swingers,” we’d prefer to also have the phrase “and activists in the sex-positive community” appended to that.

Cheers,
Matt (and Khym, who reviews everything to which her name is attached)

YG: Okay, thanks for your thoughtful responses. I especially appreciate the description of your interview process when screening couples. I’ll immediately confess that I played a bit of an impish trick, because I already knew the answer. Bear with me, please, and I’ll get to why it’s relevant. First, just to be clear, I certainly don’t mean to defend Sharon Mitchell beyond what I’ve already said. I haven’t met her and know very little about her personally. The only other little point that I think is worth mentioning is that the mainstream media often portrays porn in a very negative and sensationalistic light. We’re not reading a court record of her actual testimony, but a reporter’s accounting of her planned testimony. It’s impossible to know for certain if anything was misquoted or pulled out of context. I have seen mistakes happen over and over, most recently as the incorrect “16 performers” figure. So if I sound less hysterical and outraged by that article than you might wish, sorry, but that’s the reason. I will freely admit, though, that it sounds very bad. And I will also say that even if the trial report was inaccurate (I have no way of knowing one way or the other), Mitchell’s comments in press releases issued directly from AIM have made me cringe more than once. I’ve long been uneasy about her use of the title “Dr.,” as well.

TC: As I explicitly stated in the above post, we can leave aside the OC Weekly’s tone, or even whether or not they have reported her testimony fairly or accurately. The simple fact is she chose to be a paid witness for the defense in this trial. That alone is a lapse in judgment that is simply inexcusable. Moreover, if what has been reported as her testimony is only half-true, that puts her judgment beyond inexcusable and into the realm of utterly incomprehensible.

YG: My main point was that, even you distrust and despise her judgment (or lack thereof), she didn’t concoct the AIM protocols all by her lonesome, in a vacuum. While imperfect, those protocols have evolved with the input of multiple people in the industry as the best system to date for preventing HIV transmission within the industry. So they have to be evaluated on their own merits. To your credit, you have done so, and I think your argument is stronger when you focus on that. I’m short on time this weekend, so I won’t quibble with you about statistics, except to say I’ve reached a conclusion which is less pessimistic than yours. I will look for the book you mention after I finish the three which I’m currently reading. I’m not completely uneducated in these matters, though. I have taken mathematics courses up through the graduate level, and I am coauthor of a published study which employed statistics in its analysis.

TC: The long and the short of Talebs’ premise is that people put too much emphasis on odds (which they poorly understand) and not enough emphasis on down-side consequences.

But if condoms won’t work because of the “unique realities” of making and marketing pornography, the solution isn’t to abandon condoms. The solution is to change the realities, and that is an option open to every producer; and if they lack the creativity, business acumen, and determination to find a way to make it work, they can lay down their camera and say “If I can’t do this the right way, I will do something else.”

YG: If the tone in my post sounded irritated, it’s because I’ve found the tone in your latest posts, well…irritating. Because as wonderful and thorough as your filmmaking process is, it’s just not a model that would work for most pornographers. Your work is unique. The issue of course is not that your standards are too low. Your standards are just so incredibly high. Do I think the porn industry could be doing a better job of looking after performer health? Absolutely, yes. Do I think it’d be wise to encourage condom use? Yes again, although that issue is considerably more complex than I realized a few years ago. Do I agree with you when you say: “This is a population that no one cares about, not ‘fans,’ not producers, and maybe even not themselves.” No, and if you meant that as strongly as it sounded, I’m offended by it.

TC: I guess you’re going to have to learn to live with your offense. That there is an odd person here or there expressing concern for the work conditions under which pornography is manufactured hardly contravenes the colloquial use of the phrase “no one”. Five years ago there was an outbreak that resulted in the on-set infection of three performers. AIM and its supporters announced this was proof that their system worked, and nothing changed. In fact, things have arguably gotten worse with respect to performer health, Vivid’s backtracking on its condom-only policy being one notable example. If my model “won’t work for most pornographers” I really don’t care, and I’m sorry, but now it’ my turn to be the one who takes offense – it’s not that my standards that are too high, it’s that other people’s standards are too low.

YG: You seem to be fundamentally not okay with the way porn is done. I don’t know what would be required for you to be okay with it. What would it take for you to feel alright about it? Would the ideas you’ve outlined above be enough? I’m guessing no, which is why you make your own movies your own way. Although AIDS is a relatively new phenomenon in the human experience, sex in exchange for money or favors is something that’s been around for all of history. I reject the idea that I should feel any shame for looking for something in more conventional porn that I couldn’t find in your movies. I’ve put a lot of effort into finding a few directors who really do encourage freedom of choice and informed decisions on their sets. And I actively avoid movies which contain the most dangerous practices, such as internal ejaculations. It’s a testament of my faith in you that Matt & Khym is the only movie I’ve bought since 2004 which contains a depiction of that.

TC: I don’t know what you’re asking for here. My prescriptions for the “adult industry”? I’d say “learn how to make and market movies in a way that doesn’t treat human beings as a disposable commodity” but it wouldn’t make a difference.

Regardless of how novel or baroque the particulars of the sex act being depicted, would I be comfortable having sex under the conditions regarding STDs and pregnancy as those exhibited in the material I am watching as I can best determine? Would I be comfortable having one of my adult children having sex under similar provisions for his or her health? Perhaps this is an invocation of the Golden Rule unanticipated by its author, but I find it provides ethical guidance in this situation as well as others.

YG: If you’re disappointed in the way that I (and other people like me) think, fine. I am confident enough in my views that I am willing to go on record with them. If I encounter new information which convincingly contradicts my views, I’ll change them. I am sometimes wrong. I have no problems admitting that.

TC: I have no claim, and thus no cause or right to be disappointed with you. Between your comments here and other of your writings I am familiar with, I think I understand your point of view, and if I disagree, I disagree more on issues of considerably greater consequence with people I still manage to call “friend”. I must confess I’m not sure what you mean about being “willing to go on the record”. Do you mean commenting here? Or are you planning to write a letter to the local paper elaborating on your views about performer risks in pornography (health and otherwise,) and what constitutes ethical porn buying and watching, or otherwise make your views known? Please do scan and e-mail, or send a link. I’m always curious to hear what you have to say.

YG: Nice talking with you again.

TC: The chance to explain my choices and defend my views is always welcome. In his book, Taleb writes that he admires George Soros because Soros is never emotionally attached to a financial position, and Soros is capable of doing a complete about-face in light of new information. I endeavor to keep my mind similarly open and flexible.

YG: I’ve seen Sharon Mitchell put her foot in her mouth on more than one occasion. That time was by far the worst.

TC: If “putting her foot in her mouth” is how you characterize giving paid testimony for the defense in a brutal rape case, that’s certainly your prerogative.

YG: But ad hominem attacks aside, I don’t see what that has to do with the efficacy of the AIM protocols as a whole. You argued that the clinic has a 100% failure rate in preventing HIV transmission via a working male performer. That’s an odd way to put it. I think it’s more accurate and honest to say that during the decade that AIM has been in operation, only one has slipped through. That one instance was sad and awful. It did result in three further infections. I was extremely angry about it at the time. But I don’t see how you can predict, from that single event, the certainty of an epidemic in the future. Especially now that there are calls for more frequent screenings. While they wouldn’t be a panacea, I do think that bimonthly testing, at the minimum, would be an improvement.

TC: Similarly, if you consider giving a factual account of Sharon Mitchell’s actual words and deeds, and rendering an opinion of her judgment to be an “ad hominem attack” you are entitled to that opinion. I would invite readers follow the above links and revisit the confused and inconsistent response from AIM to the 2004 HIV outbreak. Responding to something like the 2004 outbreak is exactly what AIM’s mission is, yet by early May, AVN was calling for the industry to go condom-only until June because AIM couldn’t track all the potential contacts, and the moratorium was breaking down. After the 2004 outbreak there were also calls for increased testing, but nothing changed. Until this latest outbreak, AIM has stood by its protocols.

Pray that I am wrong, or that AIM and the rest of the industry changes its ways. But recognize that, if/when a black swan event occurs in Chatsworth the price will be paid, not by the producers or the consumers, but by the performers; and unlike AIG there will be no government bailout.

YG: Here’s the question I have for you. You seem to be strongly advocating the use of condoms in porn, which is something I’d like to see more of myself. But I’ve noticed that condoms are not especially evident in your own movies. I believe that Damon and Hunter, the one gay male couple in your productions, are the only pair I’ve seen who used a condom. It’s not like the couples you’re filming are monogamous. Marie and Jack spoke openly of their porn careers. Xana and Dax didn’t discuss it, but they were in fact already aspiring performers with a few scenes under their belts before they came to Comstock Films. Matt and Khym are kinky swingers. They seem like an especially smart couple, the conscientious type who would use condoms outside of their primary relationship. But we never really know for certain what people do in their private lives, do we?

So, given your worry about the potential ease with which men could pick up an infection somewhere and pass it along to the female partners in a sex scene, I’m wondering if you ever have similar concerns about the couples in your shoots. Do you require them to bring up-to-date test results? I hope so. Because if you don’t require that, and you also don’t require condoms, your standards would arguably be lower than those in the main porn industry served by AIM. And if you do require tests, good for you, but it’s still unclear to me that your standards would be superior to those already in place.

TC: My standard is quite simple: I don’t ask couples to take risks above and beyond those that are already a part of their established, private, off-camera sex life together prior to becoming the subject of my films. Whatever this risk is, it exists whether or not a couple allows me to film them.

YG: I’m honestly confused about how you reconcile your desire for the extra safety of condoms in porn with the content of your own productions. Perhaps it makes sense to you because your approach is that of a documentary filmmaker, and you don’t ask people to do things differently than they normally would. Apparently these couples have decided to forego condoms in their own lovemaking, even though they all have sex with other people. I don’t have any judgments on that; I just think it’s a pity those types of negotiations aren’t addressed in the interviews.

TC: If you’re having trouble reconciling, it’s because you misunderstand my position. I believe that people should choose for themselves what risks they are willing to bear, and what measures they are willing to take to protect their health. I believe that the manufacture of pornography under the AIM protocols puts people in the position of doing things with respect to their sexual health they would not otherwise do; things that go well beyond even the most value-free judgments of prudent sexual behavior. My belief is borne out both anecdotally and by the STD rates among AIM protocol performers.

If you find my decision to omit further details of Matt and Khym’s personal life ethically dubious, especially in the context of a discussion of on-camera STD transmission, my response is simple. As with all of my other subjects, I talked with Matt and Khym many times over the course of several months prior to filming them having sex—in part to ascertain what their sexual practices were, including what measures they took with respect to guarding against STDs and unwanted pregnancy, and to assure them that they would not be asked to deviate from those practices while in front of my camera. In addition to spending time enquiring into their sexual habits, I also spent no small amount of time reminding them that becoming the subject of one of my films might open up their lives to scrutiny.

YG: But if your concern about the possibility of transmission is as great as it sounds, perhaps you should encourage condom usage during your own shoots regardless of anyone’s private habits. That way, the chance of anything awful happening while you’re behind the camera would drop to nearly nil. Right?

TC: Again, I would say you have misapprehended my position. My concern is over who is asked to bear what risks, and for what benefit. Unless one subscribes to the sort of magical thinking regarding the power of the camera that underlies obscenity law, the risks to my subjects’ sexual health are unchanged by the photographic documentation of one sexual encounter—under terms of their own choosing with respect to sex acts and protective measures—out of the many hundreds or even thousands they may enjoy with one another during their ongoing relationship.

I do have concerns for less quantifiable risks, especially how my subjects’ future prospects may be harmed by appearing in one of my films. This is simply an unavoidable aspect of the work I make, and I do my best to guard against it by making the best films I am capable of making, and hoping that the films and my subjects’ reasons for consenting to being documented in such an intimate way speak for themselves.

YG: I always think it’s good to put your money where your mouth is. Once you do that, there’s hopefully not much room to squeeze any feet in there.

TC: I take it from the turn of phrase here that you disagree with my assessment of AIM and Sharon Mitchell, and in fact, find it hypocritical in light of the standard to which I hold my own filmmaking. I see a fundamental difference between filming established couples engaged in sexual behaviors which are already a part of their personal sex life, and hiring strangers to engage in high-risk behaviors as it relates to the assumption of risk. I ask my subjects to assume no additional risk beyond that which is already a part of their off-camera personal sex lives together. Employing strangers to engage in high-risk behavior increases their odds of contracting an STD infection with every encounter.

No matter how many times I read the transcript of Mitchell’s testimony, I simply don’t know what to think, and if it wasn’t a part of the public record I wouldn’t believe it. I’m sure having read this you can see why we have no regrets at having decide to forgo AIM’s service and forge our own way.