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Lesbian Who Fled Army Opens Legal Ground in Canada

Monday, December 7, 2009

After fleeing abuse at Fort Campbell, a lesbian now living in Canada is hoping for asylum on the unusual grounds of anti-homosexual persecution within the U.S. military. Her case could affect other claims by asylum seekers from democracies.

Subhead: 
After fleeing abuse at Fort Campbell, a lesbian now living in Canada is hoping for asylum on the unusual grounds of anti-homosexual persecution within the U.S. military. Her case could affect other claims by asylum seekers from democracies.



VANCOUVER, British Columbia (WOMENSENEWS)--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 said she was thrilled with the court's decision.

"I basically jumped around the room, all happy," she said.

Potential Consequences

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."

Even so, the court's decision in Smith's favor could have far-reaching implications for other refugee claimants, Liew said.

"One of the most important things that came out of this case is that every case should be looked at individually and on its own merits and facts," she said.

Canada Previously Reluctant

Canada has been reluctant to offer asylum to U.S. soldiers avoiding war in Iraq and Afghanistan, though it had welcomed defectors during the Vietnam War. In 2008, Jeremy Hinzman, the first U.S. Army deserter to seek asylum in the country, was ordered to be deported after the Federal Court of Appeal decided he would not face serious punishment upon his return.

Under the U.S. military's "don't ask, don't tell" policy, which has been officially followed since 1993, gay and lesbian individuals are allowed to serve in the military as long as they do not engage in homosexual conduct.

Federal Court Justice Yves de Montigny, however, noted this policy had mixed results in quelling anti-homosexual discrimination. He pointed out that a soldier, Pvt. Barry Winchell, who was believed to be gay, had been beaten to death in 1999 at the same base where Smith was posted.

He also noted that the 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.

He said Smith offered evidence that the military is not discharging as many gay and lesbian personnel as it did before 2001 due to the need for more soldiers in the wars in Iraq and Afghanistan.

Judge Disputes Refugee Board

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."

Wency Leung is a freelance writer in Vancouver, Canada.