United States: Prosecution of homosexuals in the military because of their sexual orientation
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board, Canada |
| Publication Date | 1 July 1999 |
| Citation / Document Symbol | USA32192.E |
| Cite as | Canada: Immigration and Refugee Board of Canada, United States: Prosecution of homosexuals in the military because of their sexual orientation, 1 July 1999, USA32192.E, available at: https://www.refworld.org/docid/3ae6aaac8.html [accessed 3 November 2019] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Section 654 of the United States Code, Title 10, provides that the following are, inter alia, grounds for discharge from the military: (i) engaging in or attempting to engage in homosexual acts (with certain exceptions); (ii) a public statement from the person that they are homosexual; (iii) marrying or attempting to marry someone of the same biological sex. "Homosexual acts" are defined as "bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires." The same provision is found in the United States Code of Federal Regulations, Title 32, Part 41, Appendix A, Part 1, Section H, which further states that the person will receive an honourable discharge unless there is a finding that the person attempted, committed or solicited a homosexual act either: by force; with a person under 16 years of age; with a subordinate in circumstances that violate military superior-subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control under aggravating circumstances having an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
According to the attached April 1998 report by the Office of the Under Secretary of Defense (Personnel and Readiness), 997 persons were discharged from the United States military for homosexual conduct in 1997. The report states that:
The Department's policy is that administrative separation [discharge] procedures are the preferred method of addressing homosexual conduct. This does not prevent disciplinary action or trial by courts-martial, when appropriate. In accordance with this policy, the vast majority of homosexual conduct discharges have been processed administratively. Most cases have been uncontested and resulted in honorable discharges. According to the Services, the cases in which service members have been criminally prosecuted for homosexual conduct have involved aggravating circumstances such as fraternization, sex with minors or sex for compensation, lack of consent, or additional charges against the individual (Apr. 1998).
According to the Servicemembers Legal Defense Network (SLDN), an advocacy organization supporting persons negatively affected by the United States military's policy on homosexuality, 1,149 persons received discharges for homosexual conduct in 1998 (15 Mar. 1999). For extensive information regarding the prosecution of homosexuals in the military, please consult the SLDN report "Conduct Unbecoming", the executive summary of which is attached to this Response. However, neither the Defense Department nor the SLDN reports provide any statistical information regarding the number of criminal prosecutions for homosexual conduct.
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.
References
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.'"
United States, Office of the Under Secretary of Defense (Personnel and Readiness). April 1998. "Report to the Secretary of Defense. Review of the Effectiveness of the Application and Enforcement of the Department's Policy on Homsexual Conduct in the Military."
United States. Code of Federal Regulations. 10 April 1999.
United States. United States Code. January 1998.
Attachments
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 - Executive Summary.'"
United States, Office of the Under Secretary of Defense (Personnel and Readiness). April 1998. "Report to the Secretary of Defense. Review of the Effectiveness of the Application and Enforcement of the Department's Policy on Homsexual Conduct in the Military."
