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.
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.
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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.
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