AN EXTRAORDINARY EXAMPLE OF THE CRIMINALIZATION OF HIV DID WRONG IN THE UNITED STATES. BOB LEAHY TALKED WITH THE MINISTER - COLONEL KEN PINKELA, CALLED TO THE MARTIAL CUT AND SENTENCED TO PASS A TIME IN PRISON FOR ALLEGEDLY EXPOSE ANOTHER OFFICIAL TO HIV WHEN NO SEXUAL CONTACT HAPPENED, PINKELA SAYS.
Bob Leahy: Thanks for chatting with PositiveLite.com about your case. Now before we start it, I want you to tell me first about your background.
Ken Pinkela: Of course! Ken Pinkela is still a Lieutenant - Colonel active in the Army (US). I had a wonderful career - was very lucky to have lived in different parts of the world and have worked in several patents. I really miss it. Right now I'm living in New York. I have 47 years.
You served on other continents in conflicts?
Yes, in the War of the original Gulf, in Desert Storm, Bosnia, Kosovo ...
So now what is your status? You are not being paid by the Army, are you?
No. My official status is that I'm on leave for judicial appeal. I'm not paid since July 15 2012.
And the alleged incident occurred at the time when you lived in Arlington in Virginia?
So let's talk about the case, Ken. I'll try to summarize it. You were sent to court martial for aggravated sexual assault, and behind it was the claim that you exposed someone to HIV. You yourself are HIV-positive.
Yes, that is exactly right. I've never been accused of infecting anyone.
But at some point in recent years, this person has become infected. But his contention is that had nothing to do with you because you never had sex with him.
This is precisely correct. I found it only twice, I was never alone with him.
Ok, let's talk about the substance of the charges it against you. Reading your documents, if I remember, was asked to orient you that a young lieutenant, to advise him because he would go to Iraq. And then followed a series of conversations and he finally came to his house, just after Christmas. Say what he said happened there.
Of Course. It is so unbelievable. He describes this scene as using some sort of shower in my shower on the second floor of my house, with my whole family present in the house. Before that he was in Huntsville, Alabama. We were never alone. He called me the day after Christmas saying he needed a place to stay. He came - my family was home - and after an hour of his arrival he went out to "see a friend." What explains he told me that he had no place to go.
When he returned to his home?
We do not know. My mother and I put pillows and blankets on the downstairs couch and we gave it to the alarm input code of the house.
Then he returned to his home at some point during the night and slept on the couch. And he went out the next day, with no indication of what had happened overnight. But he claimed later that something happened overnight.
He claims that he was preparing for sex and used a shower in my master bathroom. He said he started using it and I came allegedly, in his words, "to help you." There was no sexual contact, there was nothing and by the way, no one in the house. It does not exist.
What did he say what happened next?
This is awesome. He could not describe the sexual act happened next.
But there was no suggestion that you grabbed him and took him to the room?
No - all he described he said it was a consensual act. He never said anything that was not violent or desired occurred.
Let's assume for a moment that what he said was true. How viable would be for all this to happen, when you had guests at home and you had dogs, right?
I said that was impossible. They tried to defuse saying that this was unlikely. My mother in her testimony - she was devastated - told me that she could hear someone to release gases in the next room. The house has environmental certificates, the noise goes through walls. We introduce architectural drawings to indicate that the pain he was supposedly feeling - there was no way that someone had not heard this happen. Absolutely impossible. And we have three dogs. They latiriam.
So the physical evidence he had for any of them was what?
There is no physical evidence of any kind on the record of the trial. They had a text message (which was forged), but he admitted under oath that he stole my passwords and there is no evidence that the message has been my home.
He knew that you were HIV-positive?
Yes. I sent you a copy of his testimony where he said that he said that the investigator. And in the grand jury we did admit that he had been told about my status before it all by Captain Marine who introduced him to me as a mentor.
At which point he followed with the claim?
This was in May 2009, about seven months later. He was trying to blackmail me.
His motives, you say, was that at some point he became HIV-positive and he had to somehow explain this to his family, etc., when he had not previously been assumed for them, but had, however, brought a style of sexually adventurous gay life. So he invented this meeting.
Yes, and that was the summer of "do not ask, do not tell". He was given immunity for testifying against me.
His context is their dispute, because you discovered later, included a fair amount of casual sex.
Yes, we found out when he was diagnosed, his CDC report included between 0:15 pages, I think, contacts, research what happened before the alleged incident. The judge denied it was presented at trial. I was the one that brought up? No way.
Then it went to trial for a court martial. Tell your reaction when you realized it would come to this. You went straight to his commander, right?
Yes I really had much luck. - My boss, my chain of command, everyone was on my side even today. But I was denied access to a lawyer for at least one year, I volunteered to undergo a polygraph, I volunteered for testing phylogenetic to see if my HIV chain was the same as his.
A difference in phylogenetic test would put an end to it all, right?
But they refused to take this step?
They refused to use polygraph, They refused to do the phylogenetic test. I volunteered to it. A guilty man does not volunteer this.
Okay, Ken. You'll have to help me here. I'm not familiar with the process in the Court Martial. It differs much of the process in a Civil Court?
Very definitely. A Civil Court would never accept this case and I can say that civil lawyers who looked at my case said there was no way this case has been brought to trial. A - because there was not even an investigation. Two - the facts that led to show that a crime occurred would never have passed the Great Civil Jury.
We sometimes talk about the cases, "he said / she said" but this was a case very "he said / he said" and they chose to accept the word of the accuser. The difference in your Ken case, and what makes it a little bizarre, is that in most cases of criminalization, some sexual contact between the accuser and recognized the accused. The conflict usually comes up when one wonders if there was revelation, if condoms were used or about risk of transmission. Here the question is whether there was any sexual contact. This is unusual, is not it?
Yes, and now we turn around the side of the law - there is no recognition of any "possible means." For there was a good process - successful there should have been any possible way to explain it to my bodily fluids. There is an act which could possibly lead you to exposure of my body fluids.
But ultimately his side lost. You had a defense attorney who was unable to convince the jury that was presiding over the case of the merits of your case. By the way how long the trial?
You testified in self-defense?
No. I believe there was a decision after my mother testified, was so oppressive that time and the process had no more questions, my lawyers gave me the option, but they said "Ken, you have no reason to do it."
Did you think you would be acquitted?
His sentence was one year, was not it? You called and of course is under appeal now, but tell me what happened that year. It must have been terrible for you.
It was terrible. I was imprisoned in the military installation at Fort Leavenworth, Kansas. I cleaned the floor and then I volunteered as an English teacher.
How were you treated while imprisoned?
At first it was terrible. As soon as I arrived, I was in solitary confinement for 15 days. They took my medicines for HIV 5 days. I eventually served 272 days because I had taken some time off for good behavior.
Can I See. So during this trapping you filed a request for appeal?
In the military process, an appeal may be made after a hearing for clemency.
So you had a clemency hearing which I see you had a significant number of letters supporting you. One was someone famous.
Yes. President Carter. My family has the old house Carter in Plains, Georgia. My family approached US President Carter, told him the story; he read the record of the trial, he called and talked to my lawyers and he was eloquent enough to write a personal letter to the General Commander.
And you had many, many requests for clemency of his colleagues, his commanding officer, your friends and family, I read. So at what point is this process now?
We are waiting for a final decision from the Army Court of Criminal Appeals and unfortunately if we have to move on to the Criminal Court of the Armed Forces, which has five civilians appointed by the President. I think this summer I'll know something.
I understand, Ken, one of the process witnesses allegedly corroborated some of the accuser's stories removing what they said in their testimony after the trial. Talk about it.
Yes, in October 2 2014, the primary witness to the process went public in POZ.com and contacted me directly via my blog on Google+. He specifically said he did not know my accuser, he did not want to do anything with the trial, the military lawyer lied to him about the facts of the case and that they threatened and forced to testify against me. It is being haunted by what happened, he is fighting the alcohol trial and with the support of his family and friends he wants to do what we can to change this (his words) conviction "liar". I felt physically ill when I received this message. Know that you are innocent and then having to testify against you describe the extensions and the lies that an Army lawyer misinformed made a calendar to testify against me is more than disturbing.
We do not talk about the impact of this in your life. Talk about it.
I lost everything. I lost my house, my income, I can not a job. When I was released I went back to my home in Virginia and the Virginia state automatically put me on a list of sex offenders. It was devastating. That scarlet letter is more than devastating. Since I had no income, I had to move to New York. I'm lucky to have a wonderful family there. New York actually reviewed my records of the Military Court, as is required of them to do so by statute and they said the army "no way". And they ordered my removal from the list of sex offenders. But if I move to some other state, I would have to start all over again.
Now it seems that you have become as a result, bitter, and why not become Ken, but you also become a little lawyer on the issue of criminalization in general, not just the military, but also outside it.
Yes, sir. Sean Strub of Sero Project has been in touch with myself before trial. Before that I was naive. I had no idea that people would look for a virus and the criminalizariam. I did a Google search and I'm so lucky that the name of Sean appeared and I contacted. With the help of Sean and the Sero Project and was able to get a voluntary basis as a director for the aspects of their military policies, focusing on the evolution to make them understand the science and medicine.
In Canada and elsewhere, the main issue is the revelation in civil cases.
Everyone knew that I was HIV positive. It should not matter, but I am a documented blood exposure. But no matter how you contracted. It is a virus. But I knew where I contracted and I talked about this. Everyone in my building, in my office, I knew that I had HIV. And then, of course, this happened and I had to go up a level and shout that this can happen to anyone.
So, in your particular case, that the story of the accuser was plausible, it would have to argue that he did not know that you were HIV-positive.
But in the judgment they asked him, "Did you know that Ken Pinkela was positive?". He said "yes."
I also want to bring up the issue of undetectable viral load. We do not talk about it before because his contention is that any sexual contact occurred. But at the time of the alleged exposure which was the status of your viral load?
This was brought up. In the Army we are tested in viral load every six months. I had just given a statement of medicines. My viral load was estimated by my doctor in the low thousands probable, but we do not know how I was definitely.
So this part, the science of HIV transmission, became part of the records?
Yes, extensively. We emphasize the point of view that se I had done this, there is still no likely means that the accuser might have been harmfully exposed.
And these low - say below 10,000 * (see note at the end of the text) transmission is extremely unlikely. I want to go back a little now to these details. As you look back on all this because you had a distinguished military career? This soured his experience to serve your country?
I still love what I call "my army." I miss it. I loved and hugged my civic duty in which I was raised to give back. I was very lucky. I had unbelievable opportunities. I lived around the world. I really had an incredible career. And I can tell you, I'd go back. But I received my paperwork retirement when this happened - I have 47 ...
It seems that you do not be defeated despite these horrible circumstances. You are a strong man, obviously.
Bob, I had my days. I cry every morning. I have a different appreciation for people who experience depression, anxiety and stress. Because I can not get away from it every day. This defined my life, but I try not to let it define me.
So what did you learn from all this?
Unfortunately I learned that the letters "HIV" are misinterpreted and cause some level of fear that I think people do not realize. We do not die over HIV - but we're going to jail. Criminalization is now really the fight of HIV.
Ken, I think we ended up. I think we tell your story. It is a fascinating case and I wish to you all good. Thank you for being so generous in their responses.
Bob I can not tell you how much I appreciate it.
Ken says "Please join with me in order to President Obama and Secretary of the Army John McHugh, to grant me review of my court martial, so I can start serving my country once again with honor and dignity.
Editor's Note: I am not aware of this theory that a viral load close to 10.000 copies of the virus per milliliter of blood might give the idea of making HIV transmission "extremely unlikely." All articles we read and published, from a variety of sources, including national and international NGO sites say that, although it is still premature to say, the viral load must be undetectable (below 40 copies of viral DNA per milliliter of blood so that one can become "potentially non-transmitting HIV." In any case, the partner study (click here to read it) states that it is necessary to end the study, which will end in 2017, to have relative certainty about it.
Raise your attention, and even with HIV-negative people, always use a condom, as it avoids not only HIV as well as other STDs with syphilis, gonorrhea, or other diseases, and in some cases prevents unplanned pregnancies or worse still , teen pregnancy. Keep in mind that every time a girl, often under the age of 14 (!!!) who appears pregnant, means at least one occasion where she has exposed herself to possible contact with HIV, HPV and HCV, the Hepatitis virus C, or other sexually transmitted diseases.
Translated by: Rodrigo S. Pellegrini
Click the link below to learn more about the Parner Study.