Security clearance eligibility is determined based on a number of factors and guidelines, one of which is an individual’s sexual conduct that might pose a risk to their role. In today’s blog, we review Guideline D of security clearance eligibility and what sexual behavior might disqualify a candidate’s eligibility.
Factors Examined in a Clearance
Recall that there are certain factors that will be considered by a security clearance. National security eligibility determinations take into account a person’s:
- stability;
- trustworthiness;
- reliability;
- discretion;
- character;
- honesty;
- judgment;
- unquestionable loyalty to the U.S.
The federal government will not look at the following discriminatory factors when granting a security clearance:
- race;
- color;
- religion;
- sex;
- national origin;
- disability;
- sexual orientation.
Negative conclusions also cannot be made based solely on an individual’s mental health counseling.
The government determines security clearance eligibility based on 13 adjudicative guidelines. Decisions are based on the best interests of national security and a common sense judgment of the person’s overall trustworthiness.
Guideline D: Sexual Behavior
One of the 13 guidelines considered by the government is sexual behavior, covered by Guideline D. While sexual behavior is rarely used for a clearance denial or revocation, in cases where it is heavily considered it is typically due to criminal sexual behavior or an extramarital affair. Most sexual misconduct is either not a potentially disqualifying condition for a security clearance or can be fully mitigated by the passage of time and no reoccurrence.
Sexual behavior that could raise a security concern and disqualify a candidate includes behavior:
- of a criminal nature, whether or not the individual has been prosecuted;
- involving a pattern of compulsive, self-destructive, or high-risk sexual behavior that the individual is unable to stop;
- subjecting the individual to influence of coercion, exploitation, or duress; and
- reflecting lack of discretion or judgment.
These issues may raise questions about an individual's judgment, reliability, trustworthiness, and ability to protect classified or sensitive information. Note that sexual behavior includes any conduct occurring in person or via audio, visual, electronic, or written transmission.
Conditions that could mitigate security concerns, though, are:
- the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature;
- 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;
- the behavior no longer serves as a basis for coercion, exploitation, or duress;
- the sexual behavior is strictly private, consensual, and discreet; and
- 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 with treatment.
Note that when sexual behavior is a potential disqualifying condition, adjudicators must consider the following factors in addition to the specific disqualifying and mitigating conditions listed:
- the nature, extent, and seriousness of the conduct;
- the circumstances surrounding the conduct, to include knowledgeable participation;
- the frequency and recency of the conduct;
- the individual’s age and maturity at the time of the conduct;
- the extent to which participation is voluntary;
- the presence or absence of rehabilitation and other permanent behavioral changes;
- the motivation for the conduct; and
- the likelihood of continuation or recurrence.
Prior to 1992 the Adjudicative Guidelines had made “acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or lack of regard for the laws of society” disqualifying. This behavior included sodomy, heterosexual promiscuity, wife-swapping, transvestism, transsexualism, and aberrant, deviant, or bizarre sexual conduct.
Since 1992, though, the guidelines have changed to address these dated factors. When assessing sexual behavior, adjudicators must first consider whether the behavior is relevant to a security clearance determination in the first place before they consider whether it is true, based on the above conditions listed.
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Security clearance eligibility includes nuanced requirements that may either be glossed over or delved into by adjudicators. If you believe you might have relevant sexual behavior that could fall under Guideline D evaluations, contact an attorney immediately for legal support. The security clearance team at Claery & Hammond, LLP can take a look at the facts of your circumstances and provide you the legal guidance you need to try to pass Guideline D of the security clearance.
Contact us at Claery & Hammond, LLP to learn more about your eligibility!
