Lieutenant Colonel Kenneth Pinkela of the U.S. Army was sentenced to one year in military prison and recommend for dismissal from service on charges of exposing a younger lieutenant to HIV.
Problem is the case is riddled is holes and prosecutors, it doesn’t appear, ever did their due diligence when investigating the charges.
Gross miscarriage of justice? Even one former president thinks so.
Pinkela’s accuser, who remains anonymous until the appeals process is over, claims that he and Pinkela had consensual sex and that he was exposed to HIV at that time.
Pinkela 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 against all accepted legal practices in the U.S. Even terror suspects housed in Guantanamo Bay are allowed military legal counsel.
According to Pinkela, 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. Pinkela volunteered to mentor the lieutenant and met with them at the Silver Diner in Arlington, Va., not far from where Pinkela worked 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” Pinkela and made racist remarks about President Obama, at which point Pinkela cut him off and stopped answering calls from the young lieutenant.
Three months later, in December of 2008, Pinkela was in his home with both of his parents when the young man contacted him, claiming he had nowhere to go for New Year’s Eve and was going to be deploying in the next month or two. He then asked if he could come up to Pinkela’s place According to Pinkela, the man showed up around 8 p.m. but then left to see a friend. According to both Pinkela and his mother’s testimony, there were three dogs in the house who barked at the drop of a pin, and who all slept upstairs with Pinkela or his parents when they met for the holidays.
Pinkela didn’t see the young man again until the next morning when he was found sleeping on the couch by Pinkela and his mother as they got up to feed the dogs. After breakfast, they invited the lieutenant to go sightseeing at the war memorials but he declined. In his testimony, the young man says he went to the gym at this time. When Pinkela 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 Pinkela exposed him to HIV and that he contracted the virus as a result. He stated that he came up the stairs in the middle of the night, without waking the dogs, and that he used Pinkela’s shower, which is adjacent to the room where Pinkela’s parents sleep, without his mother hearing and despite the very thin walls in the home. He contends that Pinkela came into the shower with him to assist him in using a “douche hose” which Pinkela claims didn’t exist.
The accuser further claims that he was in physical pain from the hose, but that he proceeded with his preparations for sex anyway. The accuser alluded to their having sex, but never actually confirmed the act. In her testimony, Pinkela’s mother stated that the bathroom walls are so thin that she could “hear Pinkela fart” when used 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 didn’t search Pinkela’s home to see if he actually had a douche nozzle on his showerhead; they didn’t verify whether or not sounds could be heard through the walls and they have not met the dogs.
“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,” Pinkela said. “That to me is a huge part of these cases. They are medically and evidentially lacking.”
Despite his claim, and the testimony of his mother — who was present and heard nothing — the court appears to have believed every claim of the accuser based entirely on faith. Even after receiving thirty letters submitted in Pinkela’s defense, including one from former President Carter, the court still seems to have turned a blind eye.
As a possible motive for the allegations, Pinkela proposes that the young man contracted HIV well before meeting him and is attempting to use him as a scapegoat for his own promiscuous behavior likely leading to his contracting HIV. The young man is the son of two high ranking Army officials who are presumably not open minded about homosexuality and not keen on knowing that their son is HIV positive.
However, because of regular sexually transmitted infection screenings in the military, it would become public knowledge eventually. Court records show that the lieutenant knew of Pinkela’s HIV status months prior to ever meeting him. Pinkela and his appellate attorneys believe this is the reason the young man came to Pinkela in the first place. When he finally did report his positive status to the Centers for Disease Control and Prevention, 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 prior occasions of dishonesty. He admits to hacking into Pinkela’s personal email and altering messages sent between he and Pinkela. He also admits to lying to the prosecution at one point. Even knowing this, prosecutors still proceeded with the case without investigating.
So, why would the military judge that tried Pinkela so willingly accept the testimony of his accuser without any evidence?
It’s Pinkela’s theory that the recent scrutiny of the military 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 cited as being mishandled and at least one theory is that they railroaded Pinkela’s case, with little or no evidence, into a guilty verdict, which will result in his 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.
Pinkela’s now losing his home in Virginia due to the two years of missed work and the cost of fighting the case — which is currently undergoing the appeals process. Three judges will have an opportunity to review the details and decide whether or not to overturn the original guilty verdict.
That Pinkela had no legal counsel, and didn’t even have the opportunity for discovery of evidence from the prosecution has sparked outrage among some. Unfortunately, so many years have passed since the original accusations took place that discovering anything new in the case will be difficult, if not impossible. Critics feel this case is about more than just Pinkela, but rather, about the future of HIV criminalization in America and, while there are different rules for military tribunals than civilian court, upholding Pinkela’s conviction could be a dangerous step in the direction of criminalizing HIV.
Indeed, if Pinkela’s case is any indication of the evolving legal precedent on the matter, it could result in countless more cases being perpetrated against those living with HIV in America today.
Originally published at hivster.com on May 7th, 2014