Many people have concerns about how their past sexual indiscretions may negatively affect their security clearance eligibility. Most sexual misconduct is either not a potentially disqualifying condition for a security clearance or can be fully mitigated by “passage of time without recurrence” and the absence of any susceptibility to blackmail or coercion.
Of the approximately 1160 cases decided by administrative judges at Defense Office of Hearings and Appeals (DOHA) in 2009 only 36 cited “Sexual Behavior” as a security/suitability issue. Almost all of these 36 cases involved criminal conduct, and about half involved criminal convictions for sexual offenses. Only 2 cases cited extramarital affairs, and both of these cases involved current sexual relationships about which their spouses were unaware. Involvement with prostitutes was cited in 4 cases, 5 cases cited possession of child pornography, and 15 cases cited sexual acts with children. The remaining cases involved voyeurism, exhibitionism, and compulsive, self-destructive viewing of pornography. Eight-nine percent of the cases citing sexual behavior resulted in clearance denials. Many of these issues did not surface during standard investigations for security clearances, but surfaced during polygraph examinations required as part of the processing for access eligibility for Sensitive Compartment Information (SCI).
Guideline D: Sexual Behavior of the December 2009 Adjudicative Guidelines for Determining Eligibility for Access to Classified Information states:
Is your security clearance active?
The Concern: Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in the Guideline may be raised solely on the basis of the sexual orientation of the individual.
Conditions that could raise a security concern and may be disqualifying include:
- sexual behavior of a criminal nature, 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 causes an individual to be vulnerable to coercion, exploitation, or duress;
- sexual behavior of a public nature and/or that which reflects lack of discretion or judgment.
Conditions that could mitigate security concerns include:
- the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature;
- the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;
- the behavior no longer serves as a basis for coercion, exploitation, or duress;
- the sexual behavior is strictly private, consensual, and discreet.
Prior to 1992 the Adjudicative Guidelines made “acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or lack of regard for the laws of society” disqualifying. This included sodomy, heterosexual promiscuity, wife-swapping, transvestism, transsexualism, and aberrant, deviant, or bizarre sexual conduct.
Much has changed since 1992. When assessing sexual behavior, adjudicators must first consider whether the behavior is relevant to a security clearance determination before they consider whether it is true. Today sexual behavior is relevant when it is compulsive, self-destructive, high-risk, or criminal; creates susceptibility to coercion; occurs in public; or shows poor judgment. If at least one of these factors is not present, sodomy, promiscuity, adultery, group sex, cyber-sex, swinging, pornography, sadism, masochism, fetishism, bondage and degradation, homosexuality, bisexuality, transsexualism, and transvestism are not disqualifying conditions for a security clearance. Potentially disqualifying sexual behavior is usually a complex issue and often involves other adjudicative criteria, such as Criminal Conduct, Personal Conduct, Use of Information Technology Systems and sometimes Foreign Influence.
Absent the potential for coercion, adultery or an isolated incident involving use of a prostitute usually does not result in the denial of a security clearance under Guideline D. However, when two or more criminal convictions exist, a conviction for soliciting prostitution can be a Guideline J: Criminal Conduct issue. Under certain circumstances adultery in the military can also be a criminal offense. Eliminating the potential for coercion usually requires disclosing the conduct to a spouse and possibly to others, such as an employer if a work associate is involved or the spouse of the other person.
Allegations of sexual harassment are rarely considered under Guideline D. They are almost always Guideline E: Personal Conduct issues, because they involve rule violation and may be indicative of questionable judgment.
Compulsive, self-destructive involvement with pornography outside the workplace seldom becomes a Guideline D issue, because it is rarely discovered during a standard background investigation. Viewing or downloading pornography on an employer’s computer is a Guideline M: Use of Information Technology Systems issue, because it is almost always an unauthorized use of an employer’s computer. It can also be a Guideline E issue, because it is a misuse of an employer’s time and usually a violation of work rules.
Sexual misconduct occurring in foreign countries or involving foreigners can increase susceptibility to foreign exploitation and therefore create additional security concerns under Guideline B: Foreign Influence.
When sexual behavior is a potential disqualifying condition, adjudicators must consider the following factors in addition to the specific disqualifying and mitigating conditions listed at Guideline D:
- The nature, extent, and seriousness of the conduct;
- the circumstances surrounding the conduct, to include knowledgeable participation;
- the frequency and recency of the conduct;
- the individual’s age and maturity at the time of the conduct;
- the extent to which participation is voluntary;
- the presence or absence of rehabilitation and other permanent behavioral changes;
- the motivation for the conduct;
- the potential for pressure, coercion, exploitation, or duress; and
- the likelihood of continuation or recurrence.
Do all adjudicators consistently apply the Adjudicative Guidelines when making security clearance determinations, particularly when sexual behavior is an issue? Do some adjudicators sometimes measure an applicant’s conduct against their own personal moral standards? Occasionally an adjudicator’s decision can be arbitrary or capricious. Fortunately every security clearance applicant has a right to appeal an adverse decision to a Personnel Security Appeal Board (PSAB). If the evidence did not support the decision and/or sufficient weight was not given to the applicant’s mitigating evidence, the applicant may be successful in having the decision reversed by a PSAB. Unfortunately this does not occur very often. PABs affirm clearance denials in a large majority of appeals.
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