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Articles tagged with: Sean Strub

Jan26

Military justice?

Monday, 26 January 2015 Written by // Bob Leahy - Editor Categories // Features and Interviews, Legal, Living with HIV, Bob Leahy

An extraordinary example of HIV criminalization gone awry in the States. Bob Leahy talks to Lt. Colonel Ken Pinkela, court martialed and sentenced to a jail term for allegedly exposing another officer to HIV, when no sexual contact occurred, says Pinkela.

Military justice?

Bob Leahy: Thank you for talking to PositiveLite.com about your case. Now before we get in to that, I want you to tell me first your background.

Ken Pinkela: Sure! Ken Pinkela is still a card-carrying Lieutenant Colonel in the (US) army. I had a wonderful career – very fortunate to have lived around the world and worked at every level. I miss it terribly. Right now I’m living in New York. I’m 47.

You served overseas in conflict?

Yes, the original Gulf War, Desert Storm, Bosnia, Kosovo . . . .

So right now your status is what? You‘re not being paid by the army, are you?

No. My official status is that I am on appellate leave. I haven’t been paid since July 15, 2012.

And the alleged incident took place in your then home in Arlington, Virginia?

Yes

So let’s talk about the case, Ken. I’ll try and summarize it.  You were court martialled for aggravated sexual assault, and behind that was the allegation that you exposed someone to HIV. You yourself are HIV-positive.

Yes, that’s exactly correct. I’ve never been charged with infecting anybody.

But at some point in the last few years, this person became infected. But your contention is that it had nothing to do with you because you never even had sex with him.

That’s exactly correct. Only met him twice, never alone with him.

Ok, let’s talk about the substance of his charge against you. Reading through the documents,  if I recall, you were asked to mentor a young lieutenant, to counsel him because he was going to Iraq. And then following a series of conversations he actually came to your home, right after Christmas. Tell me what he said happened there.

Sure. It’s so unbelievable. He describes this scene of using some kind of a douche hose in my shower, in the second floor of my home, with my entire family present in the house. Previous to that he was in Huntsville, Alabama. We were never alone. He phoned the day after Christmas saying he needed a place to stay. He came in - my family was in the home - and within an hour of him arriving he went out to “see a friend.” Which is telling because he told me he had nowhere to go.

He returned to the house when?

We don’t know. My mother and I put pillows and blankets on the downstairs couch and we gave him the push button code to the home.

So he came back to the house (Ken's Arlington,  Virginia home pictured right) sometime in the night and slept on the couch. And he left the next day, with no indication that anything had happened during the night. But he claimed later that something happened during the night.

He alleges he was going to prepare for sex and used a douche hose in my master bathroom. He said he started using it and allegedly I came in, in his words, “to help him”. No physical assault, no anything and by the way, there isn’t one in the house. It doesn’t exist.

What did he say happened next?

This is amazing. He could not describe a sexual act that took place afterwards.

But wasn’t there the suggestion that you overpowered him and took him to your master bedroom?

No - everything he described he said was a consensual act. He never said anything violent or unwilling took place.

Let’s assume for a moment that piece is true though. How feasible would it be for all this to happen, when you had house guests and you had dogs right?

I said it was impossible. They tried to downplay it by saying it was improbable. My mother (below left, with Ken) in her testimony - she was mortified - told me she could even hear a fart in the next room. The home is green-certified, noise travels through the walls. We introduced architectural drawings to indicate that the pain he was supposedly in – there was no way that people wouldn’t have heard this going on. Absolutely impossible. And then we have three dogs. They would bark.

So the physical evidence he had for any of that is what?

There is no physical evidence whatsoever in the record of trial. They had a chat message (that was forged) but he admitted under oath to stealing my passwords, and there is no evidence that the message came from the Pinkela home.

Did he know you were HIV-positive?

Yes. I sent you a copy of his statement where he said he told that to the investigator. And in the Grand Jury we got him to admit that he was told my status before all this by the Marine Corps captain who introduced him to me as a mentor.

At what point did he come forward with an allegation?

It was May 2009, about seven months later. He was attempting to blackmail me.

His motive, you say, was that at some point he became HIV-positive and he had to somehow explain that occurrence to his family, etc., when he had previously not come out to them but had nevertheless led a sexually adventurous gay life style. So he invented this encounter.

Yes, and that was the summer of “Don’t ask, don’t tell”. He was actually given immunity for testifying against me.

His background, it’s your contention, because you found out later, included a fair amount of casual sex.

Yes, we found out when he was diagnosed, his CDC report included between twelve and fifteen pages, I think, of contacts, screenings which happened before the alleged incident. The judge denied that being presented at trial. I’m the one that exposed him? No way.

So this went to trial, to a court martial. Tell me your reaction when you realized it was going to come to that. You went straight to your commanding officer, didn’t you?

Yes. I’ve really been lucky - my boss, my chain of command, everybody has stood by me even ‘til today. But I had been denied access to an attorney for over a year, I had volunteered for a polygraph, I volunteered for phylogenetic testing to see whether or not my strain of HIV was the same as his.

A mismatch in phylogenetic test results would have put an end to all this, wouldn’t it?

Yes sir.

But they refused to take that step?

They refused the polygraph, they refused the phylogenetic testing.  I volunteered for that. A guilty man doesn’t volunteer for that.

OK, Ken, you’ll have to help me here. I’m unfamiliar with the court martial process. Does it differ markedly from the process in a civilian court?

Very definitely. A civilian court would have never taken this case and I can say that the civilian attorneys who have looked at my case say that there is no way this case would have gone to trial. One - because there wasn’t even an investigation. Two – the facts that purported to show a crime had taken place would never have passed the civilian Grand Jury.

We sometimes talk about “he said/she said” cases but this was very much a “he said/he said” case and they chose to accept the word of the accuser. The difference in your case Ken, and what makes it a little bit bizarre, is that in most criminalization cases, there is acknowledged some sexual contact between the accused and the accuser. The conflict usually arises around whether there was disclosure, were condoms used or about transmission risk. Here the issue is whether there was any sexual contact whatsoever. That is unusual isn’t it?

Yes, and now we get around to the advocacy side  - there isn’t even recognition of any “means likely”. There has to have been for a successful prosecution some means likely to expose him to my bodily fluids. There isn’t an act which could possibly lead him to exposure to my bodily fluids.

But ultimately your side lost. You had a defence attorney who was unable to convince the presiding judge of the merits of your case. How long was the trial by the way?

Five days.

Did you testify in your own defence?

No. I believe that there was a decision after my mother testified, it was so overwhelming at that moment and the prosecution had no more questions, my attorneys gave me the option but they said “Ken, you have no reason to go on the stand.”

You thought you were going to be acquitted.

Absolutely.

Your sentence was one year, was it not? You appealed that of course and it is under appeal now but tell me what happened in that year. It must have been horrible for you.

It was terrible. I was imprisoned at the military facility at Fort Leavenworth, Kansas. I cleaned and mopped floors and then I volunteered there as an English teacher.

How were you treated while you were incarcerated?

Initially it was terrible.  When I first arrived. I was in solitary for 15 days. They took my HIV meds away from me for five days. I eventually served 272 days because I had time taken off for good behaviour.

I see. So during this imprisonment did you launch an appeal?

In the military process, an appeal can only be launched after a clemency hearing.

So you had a clemency hearing for which I see you had a significant number of letters supporting you. One was from someone famous.

Yes. President Cater. My family owns the old Carter home on Plains, Georgia. My family approached President Carter, told him the story; he read the record of trial, he called and spoke to my attorneys, and he was compelled enough to write a personal letter to the Commanding General.

And you had many, many written requests for clemency from your colleagues, your commanding officer, your friends, family (Ken with mother and father, right) that I read. So where does that legal process stand now.

We are waiting for a final decision from the Army Court of Criminal Appeal and sadly if we have to go forward, to the Criminal Court of the Armed Forces, which is five civilians appointed by the President. I think by this summer I will know something.

I gather, Ken, one of the prosecution witnesses supposedly corroborating some of the accuser’s story recanted their testimony after the trial. Tell me about that.
 
Yes, on 2 October 2014, the primary prosecution witness went public on POZ.com and contacted me directly via my Google+ blog.  He says specifically that he did not know my accuser, he wanted nothing to do with the trial, the military prosecutor lied to him about the facts of the case and that they threatened and forced him to testify against me.  He has been haunted by what took place, he is struggling with alcohol from the ordeal and with the support of his own family and friends wants to do anything possible to overturn this (his words) “bullshit” conviction.  I physically broke down when I received his message.  Knowing that you are innocent and then to have the witness against you describe the lengths and lies that uniformed Army attorney's did to a civilian to prosecute me is beyond disturbing.

We haven’t talked about the impact of all this on your life. Tell me about that.

I’ve lost everything. I’ve lost my home, no income, I can’t get a job. When I was released I went back to my home in Virginia and Virginia automatically put me on a sex offender list. It was devastating. That scarlet letter is beyond devastation. Because I had no income I had to move home to New York. I’m lucky to have a very wonderful family there. New York actually reviewed my court martial records, as they are required to do by statute and they told the army “no way.” And they ordered my removal from the sex offenders list. But if I move to another state, I would have to go through the whole process over again.

Now it sounds like you have become, as a result of this, bitter, and why wouldn’t you be Ken, but you have also become a bit of an advocate on the criminalization issue generally, not just in the military but outside it.

Yes sir. Sean Strub of the Sero Project  has been in my corner even before the trial. Previously I was naïve. I had no idea people would look at a virus and criminalize it. I did a google search and I am so lucky that Sean’s name cropped up and I contacted him. With the help of Sean and the Sero Project I have been able to take on a voluntary title as director for their military policy side, focusing on the evolution of getting them to understand the science and the medicine.

In Canada and elsewhere, the key issue is disclosure in civilian cases.

Everybody knew I was positive. It shouldn’t matter but I’m a documented blood exposure. But it doesn’t matter how you got it. It’s a virus. But I knew where I got it and I talked about it. Everybody in my building, my office, knew that I had HIV. And then of course this happened and I have had to step it up a notch and scream and yell that it could happen to anybody.

So in your particular case, for the accuser’s story to stick, he would have had to maintain that he did not know you were HIV-positive.

But at the trial they asked him “did you know Ken Pinkela was positive?” He said “yes.”

I also want to bring up the issue of undetectable viral load. We didn’t dwell on it earlier because your contention is no sexual act took place. But at the time of the supposed exposure what was your viral load status?

That was brought up. In the military we are only tested for viral load every six months. I had just stated meds. My viral load was estimated by my doctor in the probably low thousands, but we don’t know what I was at definitively.

So did that piece, the science of HIV transmission, become part of the record?

Yes it did, extensively. We highlighted it from the point of view if I had done this, there is still no means likely that the accuser could be harmfully exposed.

And at those low levels – say under 10,000, transmission is extremely unlikely. I want to take a step back now from the details. How do you look back on all this, because you had a very distinguished military career? Has it soured your experience of serving your country?

I still love what I call “my army”. I miss it. I loved it and embraced my civic duty that I was raised with to give back. I was very fortunate. I had unbelievable opportunities. I have lived around the world. I really have had an incredible career. And I can tell you, I would go back. But I had my retirement paperwork in when this happened. – I’m 47 . . .

It sounds like you haven’t let this get you down despite the awful circumstances. You are a strong man, obviously.

Bob, I have my days. I cry every morning. I have a different appreciation for people who experience depression, the anxiety and stress. Because every day I can’t escape this. It has defined my life but I try not to let it define me.

So what have you learned through all this?

Sadly I’ve learned that the letters “HIV” are misunderstood and cause a level of fear that I don’t think people realize. We don’t die from HIV anymore- but we go to jail. Criminalization really is today’s HIV struggle.

Ken, I think we’re done. I think we’ve told your story. It’s a fascinating case and I wish you the best of luck. Thank you for being so generous in your answers.

Bob I can’t tell you how much I appreciate this.

*******

Ken says "Please join me in asking President Obama and Secretary of the Army John McHugh to grant me a review of my court-martial, so that I can begin to serve my country with honor and dignity again. Sign the petition here."

Follow me on twitter @kenpinkela 

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