January is National Slavery and Human Trafficking Prevention Month. What does this have to do with the security clearances of law abiding U.S. citizens? Nothing, unless you’re planning a visit to Amsterdam’s Red Light District on your next vacation to Europe, or a visit to one of the legal brothels in Nevada on your next TDY to Nellis or the DOE Test Site. If you’re a federal contractor or a Department of Defense (DoD) employee, you may want to reconsider your plans.
For most unmarried, first-time security clearance applicants, having previously paid for sex where it’s legal to do so usually isn’t a security concern. But special rules, which go beyond the potentially disqualifying conditions listed at Guideline D (Sexual Behavior) of the Adjudicative Guidelines, apply to everyone affiliated with DoD and to all federal contractors. The rules could negatively affect your clearance eligibility and continued employment. It doesn’t matter if you’re unmarried and don’t care who knows about your peccadilloes, and it doesn’t matter if your conduct was completely lawful, safe, consensual, private, and discreet.
Human Trafficking and Legal Prostitution
This potentially disqualifying condition for a security clearance is based on the implementation of National Security Presidential Directive 22 (NSPD-22) of 2002, “Combating Trafficking in Persons (CTIP)” and on Executive Order 13627 of 2012, “Strengthening Protections against Trafficking in Persons in Federal Contracts.” DoD Instruction 2200.01* implements NSPD-22 and states:
- POLICY. It is DoD policy to: . . . b. Deter activities of DoD Service members, civilian employees, indirect hires, DoD contractors, foreign national employees of DoD, and all dependents that could facilitate or support TIP [Trafficking In Persons], domestically and overseas. This includes activities such as: (1) Prostitution, pimping, pandering, and patronizing a prostitute. Even though such activities may be legal in a host nation country, they are in violation of: (a) Chapter 47 of Title 10, United States Code (U.S.C.), (also known as the “Uniform Code of Military Justice”) [and] (b) Paragraph 97, part IV of the Manual for Courts-Martial, United States. [Emphasis added]
Paragraph 52.222-50 of the Federal Acquisition Regulation (FAR) implements E.O. 13627 and states in part:
(b) Policy. The United States Government has adopted a policy prohibiting trafficking in persons including the trafficking-related activities of this clause. Contractors, contractor employees, and their agents shall not— . . . (2) Procure commercial sex acts during the period of performance of the contract;
(c) Contractor requirements. The Contractor shall—(1) Notify its employees and agents of—
(i) The United States Government’s policy prohibiting trafficking in persons, described in paragraph (b) of this clause; and (ii) The actions that will be taken against employees or agents for violations of this policy. Such actions for employees may include, but are not limited to, removal from the contract, reduction in benefits, or termination of employment; and (2) Take appropriate action, up to and including termination, against employees, agents, or subcontractors that violate the policy in paragraph (b) of this clause.
These Government policies apply to all federal contractors and DoD personnel. Although, federal contractors are required to notify their employees of CTIP policy and DoD personnel are required to receive annual CTIP training; many people are unaware of the potential implications of legally paying for sex. This is particularly relevant to those assigned to or vacationing in eight counties in Nevada or any of the 15 foreign countries where prostitution is legal.
Legally paying for sex just a couple of times could result in a preliminary decision to deny or revoke clearance. The Statement of Reasons (SOR) could cite disqualifying conduct under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and possibly Guideline B (Foreign Influence) of the Adjudicative Guidelines.
SOR for Sexual Behavior – Not a Hypothetical problem
This is not a hypothetical problem. I recently helped an unmarried client successfully rebut a Letter of Intent (LOI) to revoke security clearance. The SOR attached to the LOI alleged disqualifying conduct under all four of the guidelines cited above. All the allegations in the SOR were based solely on a voluntary statement he made during his Periodic Reinvestigation Subject Interview regarding his occasional patronage of sex workers in foreign countries where prostitution is legal. Fortunately he had never been informed of Government CTIP policy, had no reason to believe his conduct was a security concern, was not susceptible to blackmail or foreign influence because of this conduct, and had always acted in a lawful, safe, consensual, private, and discreet manner.
If you have legally paid for sex while employed as a federal contractor, you may be able to obtain or retain a security clearance by propounding similar mitigating factors. But clearance eligibility becomes a moot point if your employer learns of your activities and feels compelled to terminate your employment in accordance with the FAR.
* Other federal agencies have similar regulations.
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