Published November, 2015

United States v. Pinkela, ACCA, 15-0747 ORDER 110415 (11/5/15)

On November 5, 2015, the Court of Appeals for the Armed Forces granted a second petition for review of Ken Pinkela, a former Army Lieutenant Colonel living with HIV who was discharged and criminally prosecuted on charges of having unprotected anal sex with another service member. The Armed Forces Court of Appeals reversed the lower court's conviction of Ken Pinkela on aggravated assault and reckless endangerment, and affirmed a lesser included offense of assault and battery.

The case and record return again to the Army Court of Criminal Appeals to either reassess the sentence based on the affirmed findings or order a sentence rehearing.

A military judge originally convicted Ken Pinkela of two charges of willful disobedience of a superior commissioned officer (“safe-sex” orders given to HIV-identified service members), one charge of abusive sexual contact, one charge of aggravated assault, one charge of conduct unbecoming an officer, and one charge of reckless endangerment in violation of Articles 90 , 120, 128, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 920, 928, 933, 934 (2006). Pinkela was sentenced to dismissal from military service (consequently forfeiting all related benefits, including retirement benefits) and confinement for one year.

On November 14, 2014, a three-judge panel of the Army Court of Criminal Appeals affirmed the military judge’s findings and sentence in this case (see 2014 CCA LEXIS 852 (Army Ct. Crim. App. 14 Nov. 2014) (summ. disp.). However, on April 22, 2015, the Court of Appeals for the Armed Forces granted appellant’s petition for review and summarily vacated that earlier decision. The record was returned to the Army Court of Criminal Appeals for reconsideration in light of the decision in United States v. Gutierrez, 74 M.J.

61 (C.A.A.F. 2015). In Gutierrez, the superior court had held that an HIV positive service member’s engagement in oral and vaginal sex was not “conduct likely to produce death or serious bodily harm” required for a conviction of aggravated assault.  The Gutierrez court focused on the statistical likelihood of transmission, and not on the nature of the harm of HIV infection – which the appellant had not challenged and the court appears to take as a given to be “serious bodily harm.”

On remand, the Army Court of Criminal Appeals reinstated Pinkela’s conviction on all charges. In doing so, the court distinguished Pinkela’s case from the Gutierrez case on record evidence indicating that Pinkela had a “pretty significant” viral load, that he did not use a condom, that the complaining witness testified his anus was bleeding following Pinkela’s alleged assault with a “shower shot” enema prior to sex, and that they had anal sex. The lower court appears to assume a “likely” statistical risk of transmission in a case involving “bloody” anal sex rather, citing no actual testimony or other evidence to support that conclusion.

Regardless, the Court of Appeals for the Armed Forces again vacated the lower court’s findings, finding no factual basis for conviction of the more serious charges of aggravated assault and reckless endangerment.  The case now, again, returns to the lower court for findings or proceedings consistent with this latest ruling.