Sexual behavior and security clearances
Many people worry about how their past sexual indiscretions may negatively affect their eligibility for security clearance. Most sexual misconduct is not a potentially disqualifying condition for a security clearance or can be fully mitigated by “passing time without recidivism” and the absence of any susceptibility to blackmail or coercion.
Security clearance appeals for initial denials declined by about 50% in 2020, but of the 529 cases heard by the Defense Hearings and Appeals Office in 2020, only six cite ‘sexual behavior’ as a safety / adequacy issue. This is down from 2020 in 2019. Most of these cases involved criminal conduct. In most cases involving sexual behavior, problems only arise during the polygraph examinations required as part of the processing of eligibility for access to sensitive compartment information (SCI). Rarely is sexual behavior presented as an issue during a security clearance history investigation, unless some other factor is involved, such as viewing illegal content on a government device. or viewing material illegally posted on a pornographic website, or being involved in the illicit sex trade.
When sexual behavior is a security clearance issue
Guideline D: Sexual behavior of the Decision-making guidelines for determining eligibility for access to classified information States:
Preoccupation: Sexual behavior that involves a criminal offense, reflects a lack of judgment or discretion, or may subject the individual to undue influence or coercion, exploitation or coercion. These issues, together or individually, can raise questions about the reliability, reliability and ability of an individual to protect classified or sensitive information. Sexual behavior includes conduct occurring in person or by audio, visual, electronic or written transmission. No adverse inference about the standards of the Guideline can be made on the sole basis of an individual’s sexual orientation.
Conditions that could raise a safety concern and may be disqualifying include:
- criminal sexual behavior, whether or not the individual has been prosecuted;
- a pattern of compulsive, self-destructive, or high-risk sexual behavior that the person is unable to stop or that may be symptomatic of a personality disorder;
- sexual behavior that makes an individual vulnerable to coercion, exploitation or coercion;
- sexual behavior that is public in nature and / or that reflects a lack of discretion or judgment.
Conditions that could mitigate security concerns include:
- the behavior occurred before or during adolescence and there is no evidence of subsequent behavior of a similar nature;
- the sexual behavior has occurred so long ago, so rarely, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on reliability, reliability or good judgment current of the individual;
- the behavior no longer serves as a basis for coercion, exploitation or coercion;
- sexual behavior is strictly private, consensual and discreet.
- the person has successfully completed an appropriate treatment program or is currently enrolled in a program.
Prior to 1992, the Arbitration Guidelines disqualified “acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or disrespect for the laws of society”. This included sodomy, heterosexual promiscuity, wife swapping, cross-dressing, transsexualism, and aberrant, deviant, or bizarre sexual behavior.
Much has changed since 1992. When assessing sexual behavior, adjudicators must first determine whether the behavior is relevant to a security clearance determination before determining whether it is true. Today, sexual behavior is relevant when it is compulsive, self-destructive, high-risk, or criminal; creates susceptibility to coercion; performs in public; or demonstrates poor judgment. If at least one of these factors is not present, sodomy, promiscuity, adultery, group sex, cyber-sex, swingers, pornography, sadism, masochism, fetishism, bondage and degradation, homosexuality, bisexuality, transsexualism and cross-dressing are not disqualifying conditions. for a security clearance. Potentially disqualifying sexual behavior is generally a complex issue and often involves other arbitration criteria, such as criminal conduct, personal conduct, use of information technology systems, and sometimes foreign influence.
The absence of the potential for coercion, adultery or an isolated incident involving the use of a prostitute does not generally result in the denial of a security clearance under Guideline D. However, when it does there are at least two criminal convictions, one conviction for solicitation of prostitution may be a guideline. J: Criminal conduct problem. In certain circumstances, adultery in the military can also be a criminal offense. Eliminating the potential for coercion generally requires disclosure of the conduct to a spouse and possibly others, such as an employer if a work associate is involved or the other person’s spouse.
Allegations of sexual harassment are rarely considered under Guideline D. These are almost always issues related to Guideline E: Personal Conduct, as they involve a violation of the rules and may indicate questionable judgment.
Compulsive and self-destructive involvement in pornography outside the workplace rarely becomes a Directive D problem, as it is rarely discovered during a standard background investigation. Viewing or downloading pornography on an employer’s computer is an issue related to Directive M: Use of Information Technology Systems, as it almost always involves unauthorized use of the computer of an employer. It can also be an issue related to Directive E, as it is a misuse of the employer’s time and generally a violation of work rules.
Sexual misconduct occurring in foreign countries or involving foreigners may increase susceptibility to foreign exploitation and therefore create additional security concerns under Directive B: Foreign Influence.
When sexual behavior is a potential disqualifying condition, referees should consider the following factors in addition to the specific disqualifying and mitigating conditions listed in guideline D:
Extract from paragraph 2 (d) of the Arbitration Guidelines
- The nature, extent and seriousness of the conduct;
- the circumstances surrounding the conduct, including knowing participation;
- the frequency and recency of the conduct;
- the age and maturity of the person at the time of the driving;
- the extent to which participation is voluntary;
- the presence or absence of rehabilitation and other permanent behavioral changes;
- motivation for driving;
- the potential for pressure, coercion, exploitation or coercion; and
- the likelihood of continuation or recurrence.
Arguments in favor of eliminating sexual behavior as an arbitration criterion
Do all referees consistently apply refereeing guidelines when making security clearance decisions, especially when sexual behavior is an issue? Do some adjudicators sometimes measure a claimant’s conduct against their own personal moral standards? Sometimes an arbitrator’s decision can be arbitrary or capricious. Fortunately, every security clearance applicant has the right to appeal an unfavorable decision to a Personnel Security Appeal Board (PSAB). If the evidence has not supported the decision and / or sufficient weight has not been given to the applicant’s mitigating evidence, the applicant may be successful in having the decision overturned by a PSAB. Unfortunately, this does not happen very often. The CAPs confirm the refusal of authorization in the vast majority of appeals.
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* Article updated with new content / policy updates in 2021.