Sunday, August 23, 2009

Soldiers falsely accused of rape should not be penalized if their defense requires them to admit they are gay

I'm going to ask for your help on this case. I'm going to ask you to write to the Secretary of Defense -- contact information below.

Soldiers who are falsely accused of rape should not have their lives destroyed merely because they defend against the charges, even if it means violating the military's "don't ask, don't tell" policy to clear their names. Soldiers who are falsely accused of rape should have the right to defend the same as anyone else.

An Air Force hero, Lt. Col. Victor Fehrenbach, was forced to admit he had consensual sex with a man in order to clear false rape charges against him, but his admission was a violation of the "Don't Ask, Don't Tell" law. "Because of the criminal allegation, [he] confirmed the fact he was gay," said Emily Hecht, a lawyer for the Servicemembers Legal Defense Fund. "That's all the Air Force needed. Had his accuser been a woman, he'd have gone back to work with no further issue." The result? Lt. Col. Fehrenbach is being discharged, costing him a $46,000 annual pension and the dignity of retiring on his own terms.

There is a possibility his story might help lead to a positive change in the law: "Secretary of Defense Robert Gates is voicing misgivings about discharging personnel identified by third parties with questionable motives. Gates has ordered Pentagon lawyers to review ways to apply the 1993 law in 'a more humane way.' . . . ." Fehrenbach met with President Obama, and the next day, Secretary Gates suggested a change in the law that could allow people like Fehrenbach to stay in the service: "Do we need to be driven ... to take action on somebody if we get that information from somebody who may have vengeance in mind or blackmail or somebody who has been jilted?"

Bravo, Mr. Secretary!

The news story notes: "Air Force Secretary Michael Donley will make the final call on Fehrenbach's future. Spokeswoman Capt. Christina Hoggatt would not comment on whether Donley was weighing issues raised by Gates."

There are overwhelming public policy justifications for excusing admissions like the one Lt. Col. Fehrenbach was forced to make. We, as a society, need to make every effort to prevent innocent persons from being penalized by false accusations of sexual wrongdoing that are all too easy to make and all too difficult to completely disprove. An admission such as the one Lt. Col. Fehrenbach made to preserve his liberty is sometimes the only way a man can clear his good name and preserve his liberty (that is, it is sometimes the only way to explain why the parties were engaged in a sexual act).

But the wrongly accused man might be reluctant to reveal the real reason for the sexual act if he knows the military will harshly penalize him for it. Here, Lt. Col. Fehrenbach's admission was only made after he was presented with the cruelest of choices -- a choice we should not require of any citizen, much less one who has put his life on the line for us. It is an abomination that we, as a society, allowed Lt. Col. Fehrenbach to be presented with such an awful choice -- admit he's gay and forfeit everything he's worked for, or keep quiet and quite possibly forfeit his liberty.

It must be asked, which is worse, having a soldier openly admit he's gay, or allowing that soldier's life to be destroyed by a false rape claim? The question scarcely survives its statement. Let us hope the military sees it that way. I urge you to write to the Secretary of Defense, Robert M. Gates, and respectfully voice your support for Lt. Col. Fehrenbach. Please understand that Secretary Gates has spoken sympathetically for the position we advocate here, and there is no necessity to treat him with any form of disrespect: -- click on "Ask a question/make a comment."