HIV Criminalization and the Military: A Botched Case

Written by Jeromy Carpenter

Published on May 13, 2014

http://www.sgn.org/sgnnews42_19/page12.cfm

In what appears to be a gross miscarriage of justice, Lieutenant Colonel Kenneth Pinkela of the United States Army was sentenced to one year in military prison and recommended for dismissal from service on charges of exposing a younger lieutenant to HIV. His accuser, who shall remain nameless until the appeals process is over, claims that he and Kenneth had consensual sex and that he was exposed to HIV at that time. Kenneth was brought before a military general court martial after several years of waiting for the court to hear his case. He was denied a lawyer, which is very unorthodox, considering that even terrorism suspects at Guantanamo Bay are allowed military legal counsel. 

According to Kenneth, a Marine Corps captain called him out of the blue in 2008 and asked him if he could mentor a new lieutenant who was nervous about being deployed to Iraq. Kenneth volunteered to mentor the lieutenant and met with them at the Silver Diner in Arlington, Virginia, not far from where Kenneth worked at the time, at the Pentagon. They communicated by email using their military email addresses and by cell phone from that point forward. The calls mostly centered on the young man's military commander and how much he hated him. Then one September night the young man 'drunk dialed' Kenneth and made some racist remarks about President Obama, at which point Kenneth cut him off and stopped answering calls from the young lieutenant. 

Three months later, in December of 2008, Kenneth was in his home with both of his parents when the young man contacted Kenneth, claiming he had nowhere to go for New Year's Eve and was going to be deployed in the next month or two, and asked if he could come up to Ken's place from Huntsville, Alabama, where he was visiting his own parents. According to Ken, the young man showed up around 8 p.m. and then left to see a friend. According to both Ken and his mother's testimony, there are three dogs in the house who bark at the drop of a pin, who all sleep upstairs with Ken or with his parents when they visit for the holidays. Pinkela didn't see the young man again until the next morning when he and his mother found him sleeping on the couch when they got up to feed the dogs. After breakfast, they invited the lieutenant to go sightseeing with them at the war memorials, but he declined. In his testimony, the young man says he went to the gym at this time. When Ken and his parents returned home that night, the young man declined their invitation to stay for dinner and then left. 

Several years later, the young man claimed that Ken exposed him to HIV and that he contracted HIV from this exposure. He states that he came up the stairs in the middle of the night, without waking the dogs, and that he used Ken's shower, which is adjacent to the room where Ken's parents sleep, without Ken's mother hearing anything, despite the very thin walls in Ken's Virginia home. The young man states that Ken came into the shower with him to assist him in using a 'douche hose' which Ken says does not exist. The young man claims that he was in physical pain from the hose, but that he proceeded with his preparations for sex anyway. The accuser alluded to the claim that they then had sex, but he never actually stated that they did. In her testimony, Ken's mother stated that the bathroom walls are so thin that she can 'hear Ken fart' when he's in the bathroom. In his own testimony, the young man said that he made a lot of noise during the douche process because it was very painful. 

Apparently, there has been no investigation on the part of the prosecution into the factual basis of these allegations. They did not search Ken's home to see if he actually had a douche nozzle on his shower head. They did not verify whether or not sounds can be heard through the walls and they have not met the dogs, who bark at the drop of a pin. In Ken's own words: 'In my case, there is no testimony or evidence that I actually touched him in any way that could have even 'exposed' him to any virus regardless of HIV. That to me is a huge part of these cases. They are medically and evidentially lacking.' It appears as though they have taken virtually everything that the accuser claims entirely on faith and have given no weight to the thirty letters in Ken's defense that have been submitted to the court nor the testimony of Ken's own mother who was there throughout the night that the accuser said that all of this happened. Among the many letters of reference that have been submitted to the court in Ken's defense is one from former President Jimmy Carter. There are also twenty-nine other letters attesting to Ken's character from Army colonels on down to his own mother who is also a witness in the case. 

As a possible motive for these allegations, Ken proposes that the young man contracted HIV well before meeting Ken and that he is trying to use Ken as a scapegoat for his own promiscuous behavior that he most likely contracted HIV from. The young man is the son of two high ranking Army officials and it is a safe bet that they are (a) not terribly open minded about homosexuality and (b) not keen on knowing that their son is HIV positive. However, because of regular sexually transmitted infection screening in the military, it would become public knowledge eventually. Court records show that the lieutenant knew of Ken's HIV status months prior to ever meeting him. Ken and his attorneys believe that this is the reason why this young man came to Ken in the first place. When the young man finally did report his HIV positive status to the CDC, he listed his sex partners as 'TNTC' which is an abbreviation for 'too numerous to count.' 

In his testimony to the prosecutor, the young man admitted to several occasions of dishonesty. He admits to hacking into Ken's personal email and altering messages sent between he and Ken. He also admits to lying to the prosecution at one point. It seems bizarre that the prosecution would accept the allegations this young man has made without any corroborating evidence and no discovery at all. There has been no investigation into the allegations and they know for a fact that the young man is dishonest. Why would the military judge that tried Ken for the alleged crime of exposing this young man to HIV so willingly accept the testimony of his accuser without any evidence? 

It is Ken's theory that the recent scrutiny that the military has been under regarding sexual assaults may have something to do with the gross mishandling of his case. At the time that these allegations were made, there were a number of high profile and very public cases of sexual assault in the military that were clearly being mishandled by the military and it is possible that they railroaded this case, without any evidence, into a judgment of 'guilty' which will result in Ken being dismissed from the military with no pension, no health insurance and no compensation for the year that he spent in jail and the subsequent year that he has spent fighting this case, all the while unemployed. Ken is now losing his home in Virginia due to the two years of missed work and the cost of fighting this case. The case is currently in the appeals phase, where three independent judges will have an opportunity to review the details and decide whether or not to overturn the original 'guilty' verdict that was handed down by the military judge in this case. 

Regardless of whether or not these allegations are true, this has been a gross miscarriage of justice and, at the very least, Kenneth Pinkela deserves a fair trial with legal council and proper discovery of evidence. Unfortunately, so many years have passed since the original accusations took place that discovering anything new in this case will be difficult, if not impossible. However, the overwhelming evidence in support of Ken's innocence speaks for itself. This case is about more than just Kenneth Pinkela. It is about the future of HIV criminalization in America; and while there are different rules for military tribunals than civilian court, convicting Kenneth in this case would be a dangerous step in the direction of criminalizing HIV in a way that could result in countless more cases of injustice being perpetrated against those living with HIV in America today, and in other countries. If the three judges who review Ken's appeal have any judicial prudence, they will overturn his 'guilty' verdict and make sure that this never happens again to another military person who is wrongfully charged with 'exposing' someone to HIV. It may be a military tribunal, but there can be no justice until these mistakes are corrected.