How does the military prove that Someone is gay?

Answers to your questions about the news.
Oct. 13 2010 5:48 PM

How Does the Military Prove That Someone Is Gay?

With pictures, if it has them.

Lieutenant Dan Choi. Click image to expand.
Lt. Dan Choi was dismissed from the Army under "don't ask, don't tell"

A judge barred the federal government from enforcing the "don't ask, don't tell" policy on Tuesday and suspended all related proceedings and investigations. The ruling comes just a month after a court forced the Air Force to take back a nurse who had been fired under the 1993 law. How does the military prove that someone is gay?

With pictures, if they're available. Technically, the military doesn't fire people for being gay—it fires them for engaging in "homosexual conduct." This comprises: touching a member of the same sex for sexual gratification (including handholding or hugging), marrying someone of the same sex, or announcing that you're gay. So discharge proceedings focus on actions rather than underlying sexual preference. Not does he seem to like men, but did he proposition his male colleague? Or did she publicly hold hands with a female friend? There are few rules of evidence in the proceeding, so military lawyers can present a wide range of proof. They usually call witnesses who claim to have seen the suspicious activity. They may submit photos, such as printouts from a soldier's Facebook page, marriage licenses, or birth certificates indicating that the soldier's child has two mothers or fathers. Or the government could present an e-mail or letter that the service member sent to a friend stating his sexual preference.

Advertisement

Investigations, evidence, and trials aren't always necessary. Most discharged service members come out voluntarily because they're tired of hiding, in which case the government doesn't have to prove anything. But when a third party outs a soldier, the system creaks into motion. The commanding officer determines whether the allegations are credible—jilted ex-boyfriends, for example, are unreliable by rule—and decides whether discharge is appropriate. That move triggers the service member's right to an administrative separation proceeding.

While the proceeding is not technically a trial, it would be hard for an observer to tell the difference. There is a judge (called a legal adviser), a prosecutor (called a recorder), a jury (known as a panel), and a defense attorney. Many proceedings even happen in a courtroom, so there's a witness stand, a judge's bench, and a podium for the lawyers. The government calls its witnesses and presents evidence, and the service member has a right to cross examine the accusers. After the government rests, the soldier has to decide whether to take the stand in his or her own defense. Most submit an unsworn statement instead, which gets them out of cross examination.

Disproving the allegation is usually a challenge, so some just admit to it. They try to convince the panel that the drunken kiss caught on an iPhone camera was a one-time incident that is out of character for them. The so-called "queen for a day" defense has worked in a handful of cases.

The panel's decision on discharge isn't final. A general or admiral can decide to retain a service member, even if the panel finds the person has engaged in homosexual conduct.

Got a question about today's news? Ask the Explainer.

Explainer thanks Diane Mazur of the University of Florida Levin College of Law, Michelle Lindo McCluer of the National Institute of Military Justice at American University-Washington College of Law, and Aaron Tax of Servicemembers Legal Defense Network.

Like  Slate  and the
Explainer on Facebook. Follow us on Twitter.

Brian Palmer writes about science, medicine, and the environment for Slate and the Natural Resources Defense Council. Email him at explainerbrian@gmail.com. Follow him on Twitter.

TODAY IN SLATE

Politics

Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

Stop Panicking. America Is Now in Very Good Shape to Respond to the Ebola Crisis.

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

The GOP Won’t Win Any Black Votes With Its New “Willie Horton” Ad

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?

Technocracy

Forget Oculus Rift

This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.

One of Putin’s Favorite Oligarchs Wants to Start an Orthodox Christian Fox News

These Companies in Japan Are More Than 1,000 Years Old

Trending News Channel
Oct. 20 2014 6:17 PM Watch Flashes of Lightning Created in a Lab  
  News & Politics
The World
Oct. 20 2014 1:50 PM Why We Shouldn’t Be Too Sure About the Supposed Deal to Return the Abducted Nigerian Schoolgirls
  Business
Moneybox
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
  Life
Dear Prudence
Oct. 20 2014 3:12 PM Terror Next Door Prudie advises a letter writer whose husband is dangerously, violently obsessed with the neighbors.
  Double X
The XX Factor
Oct. 20 2014 1:10 PM Women Are Still Losing Jobs for Getting Pregnant
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
  Arts
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
  Technology
Future Tense
Oct. 20 2014 4:59 PM Canadian Town Cancels Outdoor Halloween Because Polar Bears
  Health & Science
Bad Astronomy
Oct. 21 2014 7:00 AM Watch the Moon Eat the Sun: The Partial Solar Eclipse on Thursday, Oct. 23
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.