Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.
Read the security clearance adjudicative criteria and you may be left with the erroneous impression that solicitation of prostitution is treated just like any other misdemeanor. After all, “a single serious crime or multiple lesser offenses” is generally required to implicate Guideline J – criminal conduct concerns (See, e.g., DoD Dir. 5220.6 § E2.A10.1.2.2.) – and prostitution is a low grade misdemeanor in every state of which I am aware.
Unfortunately, the matter is not quite so simple. Under the lesser used Guideline “D” (Sexual Behavior), 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.
- Compulsive or addictive sexual behavior when the person is unable to stop a pattern of self-destructive or high-risk behavior or that which is 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.
In most of the prostitution-related cases we’ve handled, the government has employed the “kitchen sink” approach – in essence, alleging that all four guidelines apply and placing the burden on the security clearance applicant to rebut them. Right or wrong, the rationale seems to be that the uniquely embarrassing nature of this type of criminal conduct warrants a heightened inference of the applicant’s vulnerability to blackmail.
Mitigating High Risk Sexual Behavior
Fortunately, there are mitigating factors which can successfully be employed – age, context, and singularity of the offense, among the most important. One defensive tactic the security clearance applicant should also consider is a psychological examination. A determination by a mental health professional that the applicant does not have a personality disorder can go a long way in mitigating concerns about prior high-risk sexual behavior. Such an evaluation is a necessity when Guideline “I” (Emotional, Mental, and Personality Disorders) is cross-alleged – a favorite tool of agencies simply looking to rid themselves of a particular individual.
Finally, a common question we receive from clearance holders and criminal defense attorneys alike is whether pleading to a different offense (e.g. disorderly conduct) is to the clearance holder’s benefit. Plea agreements of this nature are sometimes offered by prosecutors as a means of quickly disposing of cases. Defendants are eager to accept because it allows them to avoid the stigma of a prostitution conviction.
My answer is always the same: take the plea deal if, after evaluating the totality of the circumstances, the deal is to the defendant / security clearance holder’s advantage. But do not take a plea deal solely for appearance’s sake in the security clearance process. Federal agencies will thoroughly review the clearance holder’s underlying conduct as alleged in the police report, thus rendering the exact title of the charge to which the clearance holder pleas largely irrelevant.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.