Security Clearance Lawyer Discusses Guideline D
Sexual behavior is one of the things security clearance adjudicators will look for when reviewing your security clearance application or assessing your current level of clearance. Engaging in any type of sexual behavior, even if you weren’t convicted of any crime, can get your application denied or your security clearance revoked.
The guidelines that discuss sexual behavior are listed as security clearance guideline D in the Adjunctive Guidelines for Determining Eligibility for Access to Classified Information.
Understanding Guideline D: Sexual Behavior
Guideline D addresses stipulations associated with matters, including pornography and harassment. Sexual conduct may seem irrelevant to a security clearance case, but the U.S. Department of State states the concern of sexual behavior alludes to poor mental health and a lack of discretion and trustworthiness.
Examples of sexual behavior that can merit security clearance denial include:
- Criminal sexual behavior, regardless if the individual has been prosecuted
- Repeated compulsive and high-risk sexual behavior indicative of an emotional or personality disorder
- Sexual behavior that causes an individual to become susceptible to exploitation
- Public sexual behavior that denotes a lack of good judgment or discretion
The mere presence of a sexual behavior issue isn’t sufficient to warrant security clearance denial. The court recognizes conditions where questionable sexual behavior can be dismissed. Situations that can mitigate a security issue include:
- The conduct occurred before or during adolescence, and there is no evidence to suggest repeat behavior
- The sexual behavior happened so long ago and so infrequently that there is not enough reason to conclude the conduct will recur, or that the individual lacks good judgment or discretion
- The behavior in question no longer serves as a basis for coercion, duress, or exploitation
- The sexual behavior is private and consensual
The Guideline also notes that sexual behavior concerns cannot be brought up solely on the basis of sexual orientation.
Guideline D was applied in a 2012 Department of Defense security clearance case concerning a 53-year-old defense contractor employee. After receiving security clearance in 1986, the applicant was denied a top-secret security clearance from another agency involving access to sensitive compartmented information in a 2008 case.
The applicant failed to receive clearance in his 2008 attempt due to his involvement in criminal sexual behavior. The agency cited his admission of viewing and downloading photos of partially nude, underage females in “probably 2001.” The documentation explains the incident by saying “he wanted to see how bad and how easily accessible child pornography actually was.”
Applicant acknowledged there might have been adolescent females in other adult pornographic content he viewed, but there was no way to confirm the subjects in question were younger than 18. The 2001 incident was the only one recognized as being intentional.
Other instances involving questionable sexual behavior included intentionally misusing his company’s IT system by downloading adult pornographic materials onto an office computer in 1991 and again in 1995. There is no evidence the applicant was involved in any other incidents regarding the misuse of the company’s IT system since.
The applicant admitted to viewing adult pornographic materials in the privacy of his own home on occasion. Such occurrences do not involve criminal behavior.
In this case, there was no evidence to prove any intentional criminal behavior since the 2001 incident, or enough evidence to suggest the behavior would recur or was prompted by an emotional or personality disorder.
While the other agency denied the applicant a security clearance in 2008, the DoD granted the applicant security clearance to classified documents, citing the 2001 incident was made aware solely because of his admission, and no longer serves as a basis for coercion, exploitation, or duress.
“Different agencies weigh evidence differently,” says security clearance lawyer John Griffith. “These sexual behavior cases aren’t black and white. They require close review and application of the conditions listed in Guideline D.”
Have You Checked Your Social Media?
Security clearance applicants and those currently holding a security clearance should be aware that the opportunity now exists for investigators to scrutinize your social media presence. The government is aware that smartphones and other technical devices, as well as social media and websites, promises discreet services give individuals immense opportunity and ease of access to many forms of sexual behavior. Furthermore, users of these devices, apps, and sites feel a sense of complete privacy and lack of accountability, which may put national security at risk.
Investigators are thus looking for evidence of wrongdoing in the face of the Internet and online discretion. They may look for discreet affairs, multiple sex partners, pornography addiction, and more.
Other behaviors that could put your security clearance at risk include sexual harassment, the use of prostitutes and shady massage parlors, swinging with multiple sex partners, as well as adultery. All of these behaviors leave you open to blackmail and will be judged on a case-by-case basis.
If you have sexual behavior on your record or in your past and you wish to mitigate such concerns, that may be possible, and you give yourself the best chance for approval by hiring an experienced security clearance attorney to represent you.