Seeking asylum from the U.S. military

by on December 15, 2009  •  In Military

A young lesbian who enlisted to serve in the U.S. Army and then fled after prolonged physical and verbal abuse has won reinstatement of her application for asylum in Canada. A Canadian appellate court ruled that the Canadian Refugee Board had failed to give sufficient weight to the arguments made by Private Bethany Smith that, because of her lesbianism, she could not receive a fair trial within the American military.  The court noted that 10 years ago, another gay soldier – Barry Winchell – was murdered at the same base where Private Smith had been stationed (Fort Campbell, KY), in what apparently was a hate crime.

From Women's e/news, with a HT to Marcy Karin:

For months, Pvt. Bethany Smith silently endured taunts and physical abuse from her fellow soldiers at Fort Campbell, Ky., for being a lesbian. But when she received an anonymous note one day with a threat against her life, Smith decided she had to get out of the Army.

"It said that they were going to break into the supply room and get the keys to my room and beat me to death in my bed," Smith said, adding that the letter came only a couple months after she learned the Army was deploying her to Afghanistan. "It was at that point that I knew I was more afraid of the people who were supposed to be on my side than people we were supposed to be fighting overseas."

More than 12,000 service members have lost their jobs because of the U.S. military's so-called "don't ask, don't tell" policy. A disproportionate number of those discharges are women, according to 2008 statistics gathered by the Washington-based Servicemembers Legal Defense Network from the government under the Freedom of Information Act.

With the help of an acquaintance, Smith abandoned Fort Campbell and drove for two straight days to Canada, where she hoped to seek asylum. She crossed the border on Sept. 11, 2007. More than two years later, Smith, now 21, is fighting to stay in Ottawa, where she works for a call center.

Her efforts to obtain refugee status were boosted in November when a Canadian federal court judge decided her case should be reconsidered by the country's refugee board, which had earlier rejected her claim….

Smith assumes she would face a court martial for desertion in the United States and possibly further charges for having same-sex relations. She also believes that a court martial would consist of her peers, who would likely share the same views about her sexual orientation as her tormentors.

Jamie Liew, her lawyer, says Smith's father has received a visit from police with an arrest warrant related to her flight from the Army. Court documents also state Smith received a text message from a soldier from her base threatening that she deserved to be killed for deserting the unit.

Smith's case, believed to be a first, is based on anti-homosexual persecution within the U.S. military, says Liew, rather than on a reluctance to serve overseas, as has been the case for a multitude of other U.S. soldiers who have fled to Canada to avoid serving in Iraq and Afghanistan.

"The idea that she would be deployed with people who were giving her death threats is a problem," Liew said. "If people in your unit are not there to have your back, you would be killed in a war and you wouldn't even know if it was because of friendly fire, of enemy fire or because of someone deliberately firing at you . . . Her situation is unique in that way."…

Federal Court Justice Yves de Montigny noted … that the [American] military code still makes it an offense to have sexual relations with a person of the same sex. In his decision, de Montigny wrote that Smith "provided evidence that she was afraid that her superiors may have been involved in the harassment and threats targeted at her." The judge also said her case aligned with evidence indicating that U.S. military commanders are too often complacent and sometimes even actively abusive toward gays and lesbians….

De Montigny disputed the refugee board's earlier findings that Smith had not presented "clear and convincing" proof of the inability of the United States to protect her and had not proved she faced "a risk to her life or risk of cruel and unusual treatment or punishment upon return to the United States."

In its earlier ruling, the board had also concluded that the acts of harassment and intimidation and written threats did not constitute persecution in this particular case, according to court documents.

Liew said she and her client will now go back to the refugee board for another hearing, but did not know when.

Smith said she enlisted in 2006 because her parents wanted her to. The Army promised to pay for her college education, as well as free training, an opportunity to travel and a sign-up bonus. Admitting she took no interest in politics or current affairs, she said she hadn't known of the military's policy on homosexuality until she had already signed up to join.

Although fellow soldiers initially called her a "dyke" and other terms she considered derogatory, the abuse worsened exponentially after a soldier spotted her holding hands with another woman at a local shopping mall. Besides the name calling, Smith said she began receiving hundreds of anonymous "gay-bashing" notes and was grabbed, shaken and thrown on the ground by a male soldier daily.

"My biggest fear is upon going back, if I ever had to, they would not only court martial me . . . (they would) abuse me again," she said, recalling the relief she felt two years ago when she first arrived in Canada. "It was exciting that I didn't have to look over my shoulder anymore."


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