Domestic violence is one of several ‘shadow pandemics’ that began to rise following the COVID-19 lockdowns, mental health strain, and adjustments in daily life. And domestic violence is one area that can and has come up for security clearance holders and applicants. Local laws can sometimes make domestic violence issues more confusing and troublesome for applicants, who wonder if an arrest is actually reportable or what dropped charges will mean for their security clearance. Like all areas, honesty is the best policy – especially if you can explain your situation. And most importantly, if you are in a situation and feel unsafe, don’t feel the need to ‘protect’ your partner’s security clearance eligibility by failing to report an incident or issue.
Sean Bigley:
We’re talking this segment about domestic violence, and Lindy, this is a hot topic, not just in the clear world, but generally, I think based on some pretty startling statistics that I found, 20 people per minute are physically abused by an intimate partner in the United States, adding up to 10 million people a year, intimate partner violence is the single biggest cause of injury to women in the United States. So pretty astounding, I think certainly was to me, and I’ve spent a decade in law practice representing security clearance holders as I’m sure most of our listeners know. But I know you have a pastime of perusing the DOHA security clearance cases, and so you probably have… I would say, really a better sense than I do, even of how many cases are out there involving folks who have security clearances denied or revoked for domestic violence-related issues. What’s your sense on that?
Lindy Kyzer:
Yeah, I mean, it is disconcerting because I think when you look at a lot of the criminal conduct cases, a lot of those are domestic violence cases. And there’s different things at play there and different factors, but domestic violence is kind of a recurring topic that does come up, that security clearance holders have convergence of issues come together and then certainly end up in a clearance investigation.
You mentioned you’ve written about this on ClearanceJobs and talked about it from the role of a police officer. You are going to have police involvement in a domestic violence issue. You’re going to have something that’s going to be certainly a reportable issue, and that is another issue that comes up folks thinking, “Hey, it was a domestic issue.” Maybe the police came but there weren’t charges, or they don’t think they have to report it. But the reality is, if you have police at your house, I mean, I would love your perspective on that. My perspective on that is the understanding of if the police are coming to your house, you don’t wait and see what kind of charges come out of it, you probably need to report that, and being proactive is going to be better off then something coming up, especially with continuous vetting, some kind of an alert in your record that would get triggered down the road.
Sean Bigley:
Yeah, so as it pertains to the self-reporting issue, I mean the reporting guidelines under SEAD 3 and generally applicable at most agencies, there are a handful of agencies that kind of take it a step further and have added reporting requirements beyond that. What I always have traditionally advised our clients is that the threshold for self-reporting when the cops show up at your home is if there’s an arrest. So we do see situations certainly where the police show up. It’s kind of a keep the peace thing and everybody goes their separate ways and it’s all kumbaya. That’s increasingly rare though, I think these days with the domestic violence situations, because most states have mandatory arrest laws where if the cops come out for domestic violence calls, somebody’s going to jail.
What is kind of the general perspective, I guess, if you will, of the administrative judges and the adjudicator? Is it mitigatable?
Lindy Kyzer:
Well, everything is mitigatable. I think this is certainly an issue where your reliability, trustworthiness, and judgment are at question, if you fly off the handle and do something that hurts your spouse, the whole person concept applies to everything. So, if this truly was a one-time rare incident…I mean, you’re going to get all my triggers, Sean, because I’m a little bit… I come at this a bit of a different angle, and a lot of times in a domestic violence issue, by the time it bubbles up, there was a lot happening under the surface. It’s usually an issue whereby the time somebody finds out about it, there’s a bigger pattern here. I think it’s worth taking a harder-line stance on it. I think the government in general, writ large looks at it under the totality of circumstances. And in my experience, when you see those cases, there are usually other red flag issues out there.
You don’t have to stand on the domestic violence issue alone. A lot of times there’s alcohol consumption issues, as you mentioned, substance abuses, some substance, some kind of a criminal conduct charge. Under the weight of all of those things, it is hard to overcome if it truly is a matter of… I feel like I have seen incidents where maybe somebody has something in their background, so they’re not a current clearance holder, but they’re applying for a clearance, and in the past, they had something in their record. Those are a lot easier to mitigate passage of time versus I’m a current clearance holder and I’m facing a domestic violence issue that’s causing a clearance denial or revocation.
Sean Bigley:
I would agree with that, absolutely. I mean, as you say, everything in theory is mitigatable. Passage of time is certainly a big mitigating factor, and I think it’s important for people to understand when we talk about mitigation, there’s some specific things that the government tends to look for in these cases. So if you’ve done something in the past, whether it’s domestic violence, whether it’s some other type of criminal charge, and you’ve made amends for that or taken ownership of it and made some changes to prevent repeat, they’re not necessarily going to fry you over that. I mean, it’s something that over time, if you can show a maturation, an evolution of how you’re handling situations, it is potentially mitigatable. But there are certain things that the government really looks for in these cases. So one, is the person still on any sort of supervised release, probation, parole, anything like that. That tends to be problematic because the government says, if the court still doesn’t trust you, why should we?
Often, I’ve had to tell people over the years, you are not ineligible for a clearance indefinitely, but it may be that you need to wait a little bit more time, get off probation, et cetera. The second thing is some sort of class or therapy or something surrounding anger management, parenting, those sorts of things, whatever the trigger was, I have to be able to show that you’ve taken some positive steps to address it, and you’re not just saying, well, take my word for it that this isn’t going to happen again. And then the third thing is to your earlier point, if the person did have a clearance when it happened, was it self-reported or was this something that the person was trying to conceal, and hope wasn’t found? So all those things provided the person has done them and made the effort are going to be helpful in mitigation.
But at the end of the day, I think the most important thing that I always have encouraged people to understand is that it’s not necessarily the charge itself. That’s the issue. It’s the underlying conduct. And so people sometimes come to me or they would come to me when I was in private practice and they would say, “Well, can you work with my criminal defense attorney to help him understand how we plea bargain this down to some lesser charge so that it’s not going to impact my clearance.” And what I would always say was, that’s great if you can do that, but at the end of the day, it’s not really going to make a huge difference on the clearance side because they’re still looking at what was the underlying conduct.
Lindy Kyzer:
That’s a takeaway for me that I have had personal experience with folks saying, attorneys are coming to victims of domestic violence and saying, don’t report this, or don’t go through with charges, or don’t go through with an order of protection because you’ll be affecting your significant other’s security clearance eligibility. And I’m not an attorney, so I can say this, but I feel like if that’s the advice you’re getting, nobody who’s a victim should be threatened with not reporting something because it’s going to affect somebody’s security clearance eligibility. And I have gotten those emails, heard those stories, and have personal experience around that, and there’s always a bigger picture as an attorney. There’s a lot of inputs if they’re looking at – someone’s ability to stay employed, potentially to pay child support. I get that there’s other factors in there, but I would caution victims, just know, you are not responsible for your significant other’s clearance eligibility, and you should not feel a need to withdraw or withhold being proactive. Because that will eventually catch up with that person at some point down the road.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
