By John V. Berry, Esq., www.berrylegal.com
Typically, a very private subject, sexual behavior issues, can become a very big issue in security clearance cases for government contractors and federal employees. This article discusses the issue of Guideline D, Sexual Behavior, which involves security concerns associated with sexual behavior which can lead one to lose (or not obtain) a security clearance.
Sexual behavior concerns can come up in many different ways in the context of a security clearance. It is a very sensitive subject for many individuals and we do our best in our law firm to treat the issue with empathy and the confidentiality it requires. Many federal employees and government contractors retain their security clearances even if they have been alleged to have sexual behavior issues.
The key, when the sexual behavior issues involve a security clearance, is to make sure that the sexual behavior security concern is no longer an issue. Sexual Behavior issues under review by a security clearance adjudicator can be mitigating in a number of ways.
Adjudicative Guideline D – Sexual Behavior
Guideline D of the Adjudicative Guidelines (contained within Security Executive Agent Directive 4) (SEAD 4)) governs security clearance issues involving psychological conditions.
Specific Security Concerns of Clearance Adjudicators
Guideline D establishes the following security concerns about individuals with psychological conditions in Paragraph 12:
12. The Concern. Sexual behavior that involves a criminal offense; reflects a lack of judgment or discretion; or may subject the individual to undue inf1uence of coercion, exploitation, or duress. These issues, together or individually, may raise questions about an individual’s judgment, reliability, trustworthiness, and ability to protect classified or sensitive information. Sexual behavior includes conduct occurring in person or via audio, visual, electronic, or written transmission. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.
While there are too many different types of sexual behavior issues that could subject an individual to scrutiny to list them all here, they can include undisclosed affairs, the hiring of a prostitute, viewing of illegal pornography or issues involving massages. When we advise clients on these sensitive issues we do so with compassion and understanding. Frankly, we think that this area is too personal for investigators to delve into, but they do, so we try to advise clients accordingly to give them the best chance of obtaining or maintaining their security clearance.
How to Potentially Mitigate Sexual Behavior Concerns
In our security clearance practice, we often represent and advise individuals regarding their sexual behavior concerns which arise in the course and scope of holding or seeking to obtain a security clearance. Usually, if a serious sexual behavior issue is under review, mitigation can require the individual to demonstrate that the condition does not remain a significant security concern to holding a security clearance. The topic is pretty wide so the mitigation depends on what type of conduct is at issue. For instance, if the matter involves an extramarital affair, spousal knowledge can help or commitment to counseling can be of assistance. There are many different types of mitigation.
For cases involving paying for sexual services, counseling may need to be shown, or a demonstration that the issues are older in nature and do not indicate who the person is today.
Specific Mitigating Factors for Sexual Behavior Concerns
Under SEAD 4, there are a number of potential mitigating factors for psychological conditions. These are listed in Paragraph 14 of SEAD 4:
14. Conditions that could mitigate security concerns include:
(a) the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature;
(b) the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or judgment;
(c) the behavior no longer serves as a basis for coercion, exploitation, or duress;
(d) the sexual behavior is strictly private, consensual, and discreet; and
(e) the individual has successfully completed an appropriate program of treatment, or is currently enrolled in one, has demonstrated ongoing and consistent compliance with the treatment plan, and/or has received a favorable prognosis from a qualified mental health professional indicating the behavior is readily controllable.
The following are examples of some of the potential mitigation arguments that can be made in security clearance cases involving sexual behavior concerns, depending on the specific facts at issue.
1. Evidence which shows that the sexual behaviors described are not as bad as portrayed and that they occurred some time ago;
2. Evidence that demonstrates that the individual has sought counseling for any improper sexual behavior and has successfully completed treatment;
3. Medically-based opinions issued by mental health professionals (psychiatrists, psychologists, counselors) which show that the alleged sexual behavior is no longer an issue or is a matter under control;
4. Evidence that the individual cannot be coerced or blackmailed over the sexual behavior in question; and
5. Evidence from family and friends showing that an individual’s character overcomes the sexual behavior issues cited.
Case Examples of Sexual Behavior Issues Affecting Security Clearances
The following are a few case summaries of security clearance matters involving Guideline D, sexual behavior, before the Defense Office of Hearings and Appeals (DOHA). These few examples provide a sample of the types of cases that are involved under Guideline D:
1. ISCR Case Number 18-00757.h1 (Dec. 2018) (Applicant paid for sexual services with prostitutes at least 6 times between 1987 and 2015, at times while holding a security clearance, and once while the individual was assigned overseas. The information he presented to support his claims of rehabilitation was not sufficient to mitigate the security concerns his conduct raised about his judgment and his security clearance is denied);
2. ISCR Case Number 15-00853.h1 (Oct. 2018) (During college about 15 years ago, Applicant inadvertently downloaded and viewed a single image of child pornography. He deleted the image. The allegation that he downloaded multiple such images was not established. Applicant’s conduct did not constitute sexual behavior under Guideline D. Applicant mitigated resulting security concerns cross-alleged under Guideline E, personal conduct. Applicant’s eligibility for access to classified information was granted);
3. ISCR Case Number: 14-05391 (Dec. 2015) (Applicant’s solicitation of prostitution was a one-time, isolated offense with no other evidence of sexual behavior or criminal conduct to raise security concerns. His prompt disclosure of his arrest to his facility security officer (FSO), guilty plea, remedial security training, good character, and productive service to his employer serve as evidence of his rehabilitation and his security clearance was granted); and
4. ISCR Case Number 14-05078 (Oct. 2015) (Applicant’s employment was ended in August 2013 after he placed a cellular phone on the floor in an attempt to take a photo of a co-worker’s underwear without their knowledge. He failed to mitigate the sexual behavior security concerns and his security clearance is denied).
Each case involving Guideline D is different, but we have found that many cases can potentially be mitigated with the proper attention to treatment and the preparation of documentation showing that the sexual behavior is no longer an issue and/or there is no threat of coercion.
When a government contractor or federal employee is in need of a security clearance lawyer for issues involving sexual behavior concerns it is important to do so early in the process. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here and our Twitter account here.