United States: Whether a member of the United States armed forces could be arrested and charged with unlawful homosexual activity on the basis of an accusatory statement made to that person's commanding officer

In 1994 the United States Congress, instituted the "Don't Ask, Don't Tell, Don't Pursue" policy with respect to homosexuals in the military (SLDN 15 Mar. 1999). According to the Servicemembers Legal Defense Network (SLDN), an advocacy organization supporting persons negatively affected by the United States military's policy on homosexuality, the policy, while maintaining the ban on homosexual conduct in the military, did introduce some fundamental changes:

In two respects, however, this law is significantly different. Congressional and military leaders acknowledged, for the first time, that lesbians, gay men and bisexuals serve our nation and do so honorably and that sexual orientation is no longer a bar to military service. Second, President Clinton, Congress and military leaders agreed to end intrusive questions about service members' sexual orientation and to stop the military's infamous investigations to ferret out suspected lesbian, gay and bisexual service members. They agreed to take steps to prevent anti-gay harassment. They agreed to treat lesbian, gay and bisexual service members even-handedly in the criminal system, instead of criminally prosecuting them in circumstances where they would not prosecute heterosexual service members. They agreed to implement the law with due regard for the privacy and associations of service members. The law became known as "Don't Ask, Don't Tell, Don't Pursue" to signify the new limits to investigations and the intent to respect service members' privacy (15 Mar. 1999).

According to a Department of Defense Directive cited by SLDN, "credible information" is the threshold requirement for initiating an investigation of a member of the armed forces on the issue of homosexual conduct:

DEP'T OF DEFENSE DIRECTIVE NO. 1332.14, encl. 4 B.3.; Id. NO. 1332.30, encl. 8 B.3. 'Credible information exists when the information, considering its source and the surrounding circumstances, supports a reasonable belief that the Service member has engaged in homosexual conduct. It requires a determination based on articulable facts, not just a belief or suspicion.' (15 Mar. 1999).

Since 1994, SLDN has produced annual reports on the implementation and effects of the "Don't Ask, Don't Tell, Don't Pursue" policy. The most recent report contains anecdotal references to persons having been subjected to disciplinary or discharge proceedings on the bases of allegations of homosexual conduct:

Career Officer Court-Martialed After Witch Hunt. The Air Force criminally prosecuted Major Debra Meeks based on allegations that she was in a relationship with a civilian woman, just as the Major approached retirement. Air Force criminal investigators at Lackland Air Force Base solicited the allegations against her in the course of a witch hunt against Meeks and eleven other women named in the Report of Investigation. Meeks, who faced up to eight years in prison and forfeiture of her entire pension, was acquitted at trial in a widely publicized case.

Airman of the Year Discharged Although Accuser Recants. The Air Force discharged former Airman Sonya Harden based solely on an allegation later recanted by her accuser. The accuser admitted she lied about Airman Harden being in a lesbian relationship in retaliation for a financial dispute between the two women. Airman Harden had presented ex-boyfriends to testify on her behalf at the discharge board, to no avail.

Air Force Colonel Pursues Anonymous Allegation. The Air Force pursued Captain Ron Falcon last year based on an anonymous email message, contrary to "Don't Ask, Don't Tell, Don't Pursue." Anonymous allegations are not sufficient to begin an inquiry, because a commander cannot assess the credibility of the accuser (ibid).

For additional information concerning the legal aspects of homosexual conduct in the United States armed forces, please consult USA32189.E of 2 July 1999 and USA32192.E of 5 July 1999. The executive summary of the above-cited SLDN report is attached to the latter Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Response.

Reference

Servicemembers Legal Defense Network (SLDN), Washington DC. 15 March 1999. "Conduct Unbecoming: The Fifth Annual Report on 'Don't Ask, Don't Tell, Don't Pursue.'" [Internet] [Accessed 2 July 1999]

Additional Source Consulted

Judge Advocate Division, United States Marine Corps, Washington, DC. 2 July 1999. Telephone interview with staffperson.

United States. Manual for Courts-Martial. January 1998

United States. Code of Federal Regulations. 10 April 1999.