If Larry Craig were held to the standard of sexual conduct he imposes on the U.S. armed forces, he'd be out of his job.
A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings … that the member has demonstrated that—(A) such conduct is a departure from the member's usual and customary behavior; (B) such conduct, under all the circumstances, is unlikely to recur; … [and] the member does not have a propensity or intent to engage in homosexual acts.
The policy reappears verbatim in the U.S. Code and in regulations of the armed services. The Air Force, for instance, says any airman will be discharged if he "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act."
According to the report filed by the officer who arrested Craig at the Minneapolis airport in June, Craig stood outside the officer's bathroom stall for two minutes, repeatedly looked at the officer "through the crack in the door," sat in the stall next to the officer, tapped his foot, and gradually "moved his right foot so that it touched the side of my left foot … within my stall area." Craig proceeded to "swipe his hand under the stall divider for a few seconds" three times, palm up, using the hand farthest from that side of Craig's stall. Most of these gestures, the officer explained, were known pickup signals in a room known (and hence under surveillance for) public sex. When the officer took Craig outside and told him so, Craig claimed he had been reaching down with his hand to retrieve a piece of paper from the floor. The officer wrote that no such paper had been on the floor.
Two months later, Craig signed a plea agreement stating that he had "reviewed the arrest report" and that "in the restroom," he had "engaged in conduct which I knew or should have known tended to arouse alarm or resentment." Officially, the charge to which he pleaded guilty was disorderly conduct.
I feel sorry for Craig. I hate the idea of cops going into bathrooms and busting people for coded gestures of interest. I'd rather live, let live, and tell the guy waving his hand under the stall to buzz off. But that's not the standard Craig applies to others. Any gay soldier, sailor, airman, or Marine who admitted to doing what Craig has admitted would, at a minimum, lose his job for violating DADT. In fact, many have been kicked out for less.
Most people think "don't ask, don't tell" means that if you don't announce that you're gay, you can keep your job. It should mean that. But in practice, if you don't tell, the military can—and often does—investigate and interrogate you until you're forced to tell.
Margaret Witt, a major in the Air Force Reserve, is in the process of being discharged for lesbianism. How did investigators find out she was gay? An anonymous tip. They tracked down her former partner, a civilian, and got the woman to admit that she and Witt had lived together. When they interrogated Witt, she confessed. If she hadn't, they could have prosecuted her for "false official statements" and imprisoned her for five years. Last fall, a federal judge conceded that Witt had "served her country faithfully and with distinction" and "did not draw attention to her sexual orientation." Nevertheless, he concluded, she had no constitutional grounds to contest her discharge. If you don't tell, they make you tell.
Six years ago, the Army kicked out Alex Nicholson, an interrogator, under DADT. How did he disclose his homosexuality? He mentioned it in a letter to a friend—in Portuguese. A colleague found the letter, translated it, and outed him. "Nobody asked me if I was gay and I wasn't telling anyone," says Nicholson. "You would think that a private letter that you had written in a foreign language would be sufficiently safe." But you would be wrong.
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