One of the big problems with reporting court decisions, as I’ve always maintained, is that all too frequently the reporter will choose to report only some of the details. I’m fairly certain that GayandRight’s condemnation of Bethany Smith would take an altogether different tone if he had access to the full text of the Federal Court judgement, which happens to be available here, in PDF format, at the Court’s website.

Let me quote a bit:

When she met with occupation personnel at the Military Entry Program Services, she made it clear that she did not want to engage in combat. She enlisted for three years as a mechanic. Her contract stipulated that she had no right to cancel it, although the Army could do so at any time. It also contained a waiver of the “conscientious objector” status.

The applicant alleges that, since the recruitment process involved a considerable amount of paperwork, she did not have an opportunity to read the contract itself. She also claims that when she enquired about the meaning of the phrase “conscientious objector”, she was told that it was not important and that she should simply fill out the forms. She also claims that she did not know about the “Don’t Ask, Don’t Tell” policy towards homosexuals in the Army.

All right. What we’re talking about here, then, is a case of recruitment conmanship; the Army did not play fair with her at the earliest stage of the process. What’s more, we’re talking about someone with a public high school education; “caveat emptor” didn’t even get a chance to come into play.

Furthermore, the Globe story in question doesn’t have these details, found on pages 3 and 4:

[7] In March 2007, she was sent to Fort Campbell in Kentucky and worked there as the only female mechanic in the motor pool. She was harassed and insulted by other soldiers because she had the appearance of a lesbian. The situation worsened when she was seen holding hands with another woman in a public place. When her superiors became aware of this situation, they started treating her harshly and giving her assignments that were incompatible with her medical condition. She also received hundreds of handwritten notes that were posted on her dormitory door, containing threats of beatings. In early June, she was particularly frightened by one note whereby she was threatened to be murdered in her sleep.

[8] The applicant did not tell anyone about the notes, because she did not know whom she could trust and whether she would be talking to authors of the notes. She did not confront her superiors either, because they had treated her badly after rumours circulated about her sexual orientation. She thought that they would not do anything to help her and she feared that higher ranking officers were also behind those acts of harassment.

[10] The applicant feared that the death threat in the note she had received in early June could become reality since, down the hall from her room, was the supplies room where the keys to all the rooms were kept. She tried to obtain a discharge by frankly revealing to her superiors that she was a lesbian. Her request was denied and the Sergeant ordered her not to speak to officers of higher rank about it.

[12] On September 9, 2007, fearing that her life was in danger, she fled from the base with another soldier. After leaving the base, the applicant received an anonymous call, apparently from her base, threatening to “kick a hole in her face” if she returned to Fort Campbell. Another soldier from the base apparently sent her a text message saying that she deserved to be killed for deserting the unit.

Something disturbing also emerges on Page 16 of the judgement:

Unlike Mr. Hinzman, she could be punished not only on AWOL and desertion charges, but also for simply being gay. As already mentioned, Article 125 of the Uniform Code of Military Justice still makes it an offense to have sexual relations with a person of the same sex. This fundamental flaw in the Member’s reasoning, it seems to me, permeates his entire approach to the case and certainly skewed, at least to some extent, his perception of the nature of the applicant’s claim and predicament.

In this case, the informal policy of “don’t ask — don’t tell” simply doesn’t work. Not in an environment as intimate as the U.S. Army. The Court is arguing, here, that the IRB member didn’t believe that Ms. Smith would be prosecuted on that charge. That’s a dangerous assumption to make, if you’re talking about harassing somebody.

The Court also found that the IRB member relied on evidence from a previous case, rather than accept evidence on the same topic provided by Ms. Smith’s lawyers, i.e. statistics on how the US armed forces treated deserters. Ms. Smith’s happened to be more up to date because it took into account incidents during and after the Gulf War and second Iraq invasion. It also found the member summarily dismissed expert testimony that deserved more consideration — but I honestly think you should read the judgement for yourself.

Normally, I’m not in favour of treating “war resisters” as refugees, as the post-Vietnam US armed forces are supposed to be all-volunteer, and the assumption is the recruit knew what he or she was getting into. But my assumption is also based on a second one: that the Armed Forces “play fair” with the people it recruits and trains. And it doesn’t look like this happened in this case.

This entry was posted on Friday, November 20th, 2009 at 16:30 and is filed under Judgments. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.