Criminal HIV Laws Compounded by Confusion Over HIV Test

July 24, 2012

24 Jul (WASHINGTON DC) – Six weeks after an Army judge at Ft. Bragg, North Carolina, acquitted a heterosexual soldier in a so-called “HIV panic” case, another military judge at Ft. Belvoir in Virginia found a gay Army officer guilty on all counts for not revealing his HIV status and engaging in unprotected sex. 

by Terry Michael

But the Ft. Belvoir judge, Col. Michael Hargis, imposed a surprisingly lenient sentence.  Together, five charges against Lt. Col. Kenneth Pinkela of Arlington, VA, could have resulted in 16 years imprisonment, according to attorneys.  Instead, the judge dismissed him from the Army and ordered him confined for only one year, which, with good behavior, usually results in ten months imprisonment, according to experts in military sentencing.

Military judges do not routinely explain the basis for their verdicts when defendants choose to have them decide a case instead of a jury, and Hargis was no exception. But from queries of an expert witness during the proceedings, it appeared the judge had some doubt as to whether an HIV test always proves presence of an active, infectious retrovirus, or may just assay for anti-bodies to a set of viral proteins.

The back-to-back Judge Advocate General (JAG) Corps cases come at a time when advocates for HIV positives – including a Member of Congress and the founding publisher of POZ magazine – are calling for reconsideration of state statutes and military regulations adopted in the 1980′s and 1990′s, which treated alleged HIV infection as a lethal weapon.  Most were enacted when near-panic about a retrovirus spreading into the heterosexual population was driven by fear that tens of millions of Americans were going to die from AIDS – before AIDS (or HIV disease, as it is now sometimes called) began to be regarded as a chronic but manageable syndrome.

In the Army since 1987 and stationed at Ft. Myer, VA, Pinkela was convicted June 30 by Judge Hargis in a trial that lasted four full days. The principal charge was that Pinkela “…on or about 28 December 2008 commit[ed] an assault on First Lieutenant Christopher Hamilton, by exposing him to the Human Immunodeficiency Virus (HIV), a means likely to produce death or grievous bodily harm, by having unprotected anal sex with First Lieutenant Christopher Hamilton.”

A second count – resulting in graphic testimony by Hamilton, 26, now a civilian attending Univ. of Miami Law School – charged that Pinkela injured Hamilton with a high-pressure anal douche device known as a “shower shot” that caused rectal bleeding. The other three charges were Army procedural counts relating to: violating a commander’s orders (regarding HIV status disclosure and unprotected sex); engaging in conduct prejudicing good order and discipline; and conduct unbecoming an Army officer.

In the Ft. Bragg case, Army Sgt. Tarence C. Dixon faced similar charges of failing to disclose his status to four female sexual partners, though none claimed Dixon engaged in unprotected sex.  But the charges were severe involving multiple counts with the four women, and could have resulted in up to 37 years imprisonment. The judge in that case, Maj. Brett Batdorf, acquitted Dixon on May 17 of all counts relating to HIV and failure to disclose his status after hearing expert defense testimony raising the same question posed in the Belvoir proceedings: Is an HIV test actually an assay for an active virus?

Defense witnesses in both the Bragg and Belvoir cases testified that formal package inserts accompanying serological (blood serum) HIV tests, including the ELISA and Western Blot, acknowledge they are not to be used to diagnose disease. They test for anti-bodies to an array of proteins in the blood, believed to be indicative of exposure to, or infection with HIV.

HIV specialists testifying for the prosecution in both trials acknowledged that some of the bands on the assays can “light up” in cross reactions from proteins caused by 88 or more bodily conditions, including recent flu shots or other vaccinations, pregnancy in women being tested, and many diseases.

But expert witnesses presented by the JAG prosecutors in Pinkela’s case argued that cross reactivity was unlikely in Pinkela’s tests. Col. Michael Zapor, MD, an infectious disease specialist at Walter Reed Army Medical Center, said he had reviewed Pinkela’s medical records, which indicated his Western Blot assay was reactive for all nine protein bands on the test. Zapor argued that it would be impossible for cross reactions to explain Pinkela’s test results.

In addition to attempting to raise doubts about the reliability of HIV-related assays, the civilian attorney for Pinkela, Philip Cave of Alexandria, VA, who specializes in military criminal cases, also tried to raise doubts about the credibility of accuser Hamilton’s story of his alleged encounter with Pinkela and the circumstances that led to Hamilton waiting four months to make his accusations, when he sought advice from a military attorney in the Spring of 2009.  But as one trial observer characterized it, “It came down to a ‘he-said-he-said’ dispute.”

The principal expert witness for Pinkela was Dr. David Rasnick of Oakland, CA, a PhD in chemistry who began his career at Abbott Laboratories (1978-80), where his work included studying enzyme immunoassays (EIA), a bio-chemical technology that is the basis for the tests for HIV anti-bodies known as ELISA (enzyme-linked immunosorbent assay.)  Later in his career, Rasnick worked on the class of anti-retroviral drugs known as protease inhibitors (part of the HAART drug “cocktails”).

Rasnick was questioned by a second attorney for Pinkela, Baron Coleman of Montgomery, AL, who specializes in HIV-AIDS law and has represented a number of civilian and military defendants charged under the so-called “HIV panic” statutes.  Coleman also was part of the defense team representing Sgt. Dixon, who was acquitted at Ft. Bragg six weeks before Pinkela’s trial.

Examining Rasnick, Coleman asked the bio-chemist if he knew of any orthodox expert in HIV and AIDS who questioned whether anti-bodies found in HIV serological tests always mean presence of active HIV.

“Yes,” Rasnick said. “I believe Dr. Luc Montagnier, winner of the 2008 Nobel Prize in Medicine for discovery of HIV, has said the body can clear itself of HIV in several weeks if you have a good immune system.”

Rasnick was referring to an interview Montagnier did in 2006 for the documentary film, House of Numbers (2009), exploring anomalies from HIV-AIDS mainstream medical science beliefs. (The full interview is on YouTube, where it has gone viral, seen by a quarter-million visitors.)

Among those who have been active recently in questioning “HIV panic” laws is Sean Strub, founding editor of POZ magazine. In his POZ blog dated June 27, Take the Test and Risk Arrest? Strub wrote: “Every person with HIV is one disgruntled ex-partner away from ending up in a courtroom. The chorus of calls to get tested would be more credible and more honest if they also included tips on how and where to get tested anonymously and how to protect against the risk of HIV criminalization.”

In September 2011, U.S. Rep. Barbara Lee (D-CA) introduced H.R. 3053: The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act ( REPEAL)  that calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses.

Mother Jones magazine published a comprehensive piece on “HIV panic” laws June 21: Should Not Disclosing Your HIV Status Be a Crime? by Nicole Pasulka. The article focused on civilian, not military, cases. It noted that “…32 states and two US territories have some sort of HIV-specific criminal transmission statute. Forty-five states have laws against HIV-positive people not disclosing their status.” And the piece quoted estimates from Beirne Roose-Snyder, managing attorney with the Center for HIV Law and Policy, that over 400 HIV-positive people have been prosecuted for criminal transmission since 1990.

UPDATE 6 November 2015: Conviction REVERSED based upon OMSJ’s 2015 victory in US v. Gutierrez (2015).

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