Many people have concerns about how their past sexual indiscretions could negatively affect their eligibility for the security clearance. Most sexual misconduct is either not a potentially disqualifying condition for a security clearance or can be completely mitigated by “no-recurrence timing” and the lack of any susceptibility to extortion or coercion.
Objections to security clearance due to initial denials decreased by about 50% in 2020, but of the 529 cases negotiated by the Defense Bureau for Hearings and Appeals in 2020, only six identified “sexual behavior” as a security / suitability issue. That is less than 2020 in 2019. Most of these cases involved criminal behavior. In most cases involving sexual behavior, problems arise only with polygraph exams, which are required as part of processing for authorization to access Sensitive Compartment Information (SCI). It is rare for sexual behavior to appear as an issue as part of a security clearance unless it is another factor, e.g. For example, viewing illegal content on a government device, viewing illegal content posted on a pornographic website, or engaging in an illegal sex business.
When sexual behavior is a security clearance issue
Guideline D: Sexual behavior of the Adjudicative guidelines for determining the authorization to access classified information Conditions:
The concern: Sexual conduct that constitutes a criminal offense, reflects a lack of judgment or discretion, or may subject the person to inappropriate influence or coercion, exploitation or coercion. Together or individually, these issues can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Sexual behavior includes behavior that occurs in person or through audio, visual, electronic, or written transmission. A negative conclusion about the standards in the guideline may only be drawn based on the sexual orientation of the individual.
Conditions that raise safety concerns and potentially disqualify include:
- criminal sexual behavior, regardless of whether the person has been prosecuted or not;
- a pattern of compulsive, self-destructive, or high-risk sexual behavior that the person cannot stop or that may be symptomatic of a personality disorder;
- sexual behavior that makes a person vulnerable to coercion, exploitation, or coercion;
- sexual behavior of a public nature and / or that which reflects a lack of discretion or judgment.
Conditions that could mitigate safety concerns include:
- The behavior occurred before or during puberty and there is no evidence of behavior of a similar nature later.
- The sexual behavior occurred so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not call into question the individual’s current reliability, trustworthiness, or good judgment.
- The behavior no longer serves as the basis for coercion, exploitation, or coercion.
- Sexual behavior is strictly private, consensual and discreet.
- The person has successfully completed or is currently enrolled in an appropriate treatment program.
Prior to 1992, the Adjudicative Guidelines disqualified “acts of sexual misconduct or perversion that indicate moral confusion, poor judgment, or disregard for the laws of society”. This included sodomy, heterosexual promiscuity, wife swapping, transvestism, transsexuality, and deviant, deviant, or bizarre sexual behavior.
A lot has changed since 1992. When assessing sexual behavior, judges must first assess whether the behavior is relevant to a security clearance before examining whether it is true. Nowadays, sexual behavior is relevant when it is compulsive, self-destructive, risky, or criminal. creates susceptibility to coercion; appears in public; or shows poor judgment. If at least one of these factors is absent, sodomy, promiscuity, adultery, group sex, cyber sex, swinging, pornography, sadism, masochism, fetishism, bondage and humiliation, homosexuality, bisexuality, transsexuality, and transvestism are not disqualifying conditions for a security clearance. The potential disqualification of sexual behavior is usually a complex issue and often includes other critical criteria such as criminal behavior, personal behavior, use of information technology systems and sometimes foreign influence.
In the absence of the potential for coercion, adultery, or an isolated incident involving a prostitute, a Guideline D security clearance is typically not denied. However, when there are two or more criminal convictions, a prostitution conviction can be a guideline J: Problem of criminal behavior. Military adultery can also be punishable under certain circumstances. Eliminating the potential for coercion usually requires disclosure of conduct to one spouse and possibly to others, e.g. B. An employer, if a work colleague is involved, or the spouse of the other person.
Guideline D rarely addresses allegations of sexual harassment. These are almost always Guideline E: Questions of personal conduct, as they contain rule violations and possibly point to a questionable judgment.
Compulsive, self-destructive preoccupation with pornography outside of the workplace rarely becomes a Policy D issue because it is seldom discovered during a standard background investigation. Viewing or downloading pornography on an employer’s computer is a Policy M: Use of Information Technology Systems issue as it is almost always unauthorized use of an employer’s computer. This can also be a Policy E issue as it is a misuse of an employer’s time and usually a violation of labor rules.
Sexual misconduct abroad or the involvement of foreigners can increase vulnerability to foreign exploitation and therefore create additional security concerns under Policy B: Foreign Influence.
If sexual behavior is a potential disqualification condition, judges must consider the following factors in addition to the specific disqualification and mitigation conditions listed in Policy D:
Extract from paragraph 2 letter d of the Adjudicative Guidelines
- Type, extent and seriousness of behavior;
- the circumstances of the conduct, including knowledgeable participation;
- the frequency and timeliness of the behavior;
- the age and maturity of the individual at the time of the behavior;
- to what extent participation is voluntary;
- the presence or absence of rehabilitation and other permanent behavioral changes;
- the motivation for the behavior;
- the potential for pressure, coercion, exploitation, or coercion; and
- the likelihood of continuation or recurrence.
The case for the elimination of sexual behavior as a crucial criterion
Do all jurors consistently apply the guidelines for judgment when making safety clearings, especially when sexual behavior is an issue? Do some jurors sometimes measure a candidate’s behavior against their personal moral standards? Occasionally, a judge’s decision can be arbitrary or capricious. Fortunately, any security clearance applicant has the right to appeal a negative decision to a Personal Security Appeal Board (PSAB). If the evidence does not support the decision and / or insufficient weight has been attached to the applicant’s attenuating evidence, the applicant may succeed in overturning the decision by a PSAB. Unfortunately, this doesn’t happen very often. PABs confirm the denial of clearance in a large majority of appeals.
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* Article updated with new content / policy updates in 2021.