You can read our first interview with Ken Pinkela here.
Since that time the United States Court of Appeals for The Armed Forces has reconsidered the verdict and directed a review of the case by the lower court. This was in light of a ruling in another military conviction resulting in an eight-year military jail term in United States v. Gutierrez. In that precedent-setting case, an undetectable viral load defence was finally successful in reduced charges relating to an HIV non-disclosure conviction.
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Bob Leahy: I wanted to ask you first, Ken what the reaction to our last interview was. Did you get much feedback?
Ken Pinkela: Oh yes. It was actually overwhelming. I can tell you that your article was probably more shared, retweeted, and Facebook-liked than anything that has been written about my case. Your stuff has absolutely led the charge.
That’s really good to know. I want to ask you about recent developments in the case but I want to know before that how are you holding up?
I’m OK. I’m a little better because this is the first good news we’ve got with the Military High Appellate Court ruling.
Right. So since we spoke there has been a number of developments, First of all, there has been another case that although not identical, has had a bearing on the direction of yours. Do you want to summarize the Gutierrez case?
He (below left) was married, HIV-positive and an active duty Air Force enlisted person charged under the Uniform Code of Military Justice with aggravated assault, reckless endangerment, conduct unbecoming,
The charge revolved around the fact that he allegedly exposed several people to HIV. And it was in the context of swingers’ parties in which his then wife took part, right, but subsequently blew the whistle after they separated.
Yes, he and his wife were very open about their sex life. The case was very unique. He was on medication. The three women witnesses all claimed that Gutierrez had used a condom. This was not unprotected sex. He was charged with non- disclosure leading to aggravated assault likely to cause “grievous bodily harm or death.”
Now he had an undetectable viral load. Did that fact play an important part in the review of his case in that they reviewed the risk of transmission and came to some conclusions?
Yes, this was the first time that the United States Court of Appeals for the Armed Forces – remember these are five civilians appointed by the President of the United Sates – acknowledged, somewhat, the current science of the risk of transmission.
So what happened in his case? Was it sent back for review?
What happened is that the higher court actually reduced his charge from aggravated assault – and we still can’t figure this out – to assault and battery. They say that because he admitted sex, regardless of the condoms, regardless of the undetectable viral load, they are interpreting that as some kind of battery. It’s weird.
There are parallels here in that if there isn’t disclosure of HIV-status, it’s considered without consent and thus assault charges can stick.
Sadly that’s the same rationale here and it doesn’t make sense. Now he’s under what is called a sentence review.
So how has that impacted your case?
Ken: We actually asked the Army to delay reviewing my case until the High Court made a ruling in the Gutierrez case. They denied that and so ahead of his ruling, went ahead and affirmed my trial conviction. The army appellate court said that my trial was all correctly handled. They affirmed my conviction, they affirmed the sentence. That was in January/February of this year.
That must have been incredibly disappointing for you.
It was terrible. They did not read the case. Anybody who has had the benefit of reading my record of trial has said “there is nothing there.” They cannot understand. As my army attorney said “I can’t see how they convicted you of a crime”. So how did the Gutierrez case affect me? After that case the appeal judges reduced Gutierrez’s charges, but with me they vacated the army’s decision. They erased it. They said that based on Gutierrez, we’ve reviewed your case and we don’t think the facts justify conviction.
So that was the news that made POZ.com.
Yes. It’s very good news.
So it goes back to the original military court now for them not just to reconsider the sentence but the finding of guilt?
Yes, to re-evaluate my entire case, both factually and legally. The high court has told the Army appellate court they must review my record of trail. No idea about timelines. That is the worst part. It’s terrible. In the civilian world there are timelines, in the military court there are no timelines.
So this is hanging over your head. You are still on . . . remind me of your employment status. Are you receiving pay?
I have not been paid since July 15, 2012.
So what’s your state of mind? What does all this feel like?
The depression is terrible. I can’t really move on with my life. I’m in legal limbo. I can’t go and get a job because of these charges.
How are you surviving money-wise then?
I have nothing. I’m 47 living with my retired elderly parents. I can’t get unemployment. I’ve paid in to the American social security system for over 30 years and I had an army career for almost 27 years. I’ve paid in to the system – but got nothing.
Let’s be optimistic though because it’s starting to look a little better. If the charges were set aside, what would be your next steps? Would you return to active service (right) or somehow get your income source back?
Well, I’m trying to look forward instead of backward. If and when the charges go away, I will be retired and entitled to retirement pay and I can go ahead and get a civilian job.
Strikes me that in the meantime you’ve become a bit of an activist. You’ve become part of the anti-criminalization movement.
Yes. Before I was talking locally about HIV. I used to teach at Fort Myer about physical fitness. I used to say “guess what, I have HIV too. I have another reason to be healthy”. Now I’ve decided to step up and literally scream about HIV.
You sound as if you’re coping as best as you can.
I have an incredible family. And we almost hit 75,000 signature on my petition requesting a case review.
Well we at PositiveLite.com will be delighted to be one of the first to report your finding of innocence. Good luck, Ken. Keep in touch!
Will do. Thanks Bob.
You can follow Ken on twitter at @kenpinkela.