U.S lesbian war deserter wins key victory in asylum bid

by Rhonda J Mangus | November 23, 2009 at 08:06 pm

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A U.S. lesbian war deserter wins a key victory in asylum bid. Private Bethany Smith, who now goes by the name Skylar James, took her case to Federal Court in September after being denied asylum by the Immigration and Refugee Board to plead for refugee status in Canada.

At that time, Federal lawyer Brian Harvey urged the court to reject Ms. Smith's claims for refugee status.

Federal lawyer Brian Harvey urged the court to reject Ms. Smith's claim, saying it is not the job of the Canadian courts to interfere with American military justice and its treatment of deserters.

Refugee status, Mr. Harvey said, should not be granted simply because Ms. Smith faces prosecution in her home country. "There's no evidence that she faces tougher sentencing treatment because of her sexual orientation," Mr. Harvey said.

In this latest ruling, Federal Court Justice Yves de Montigny's ordered the board to consider Ms. Smith as a credible refugee candidate.

Federal Court Justice Yves de Montigny's order for the board to consider a gay U.S. soldier as a credible refugee candidate is believed to be a first, said a spokesman for the U.S. military. "I have never heard of anybody attempting to do that before," said army spokesman Lieutenant-Colonel Christopher Garver.

Private Bethany Smith, 21, will have another chance to argue her case for staying in Canada, rather than face deportation and a possible court martial in the United States for fleeing the military base at Fort Campbell, Ky., two years ago.

"I did a happy dance when I heard," said the deserter, now an Ottawa call centre worker who has adopted the name Skyler James.

Pte. Smith, who says she was outed by another soldier who spotted her walking hand-in-hand with a woman at a shopping mall, contends in court documents that she was badgered daily, saddled with extra work by her superiors and received more than 100 threatening notes on her dormitory door, including a death threat.

Pte. Smith says she sought a discharge from the army -- under the U.S. "Don't Ask, Don't Tell" policy that permits openly gay soldiers to leave -- but that she was told the paperwork would not be done until after she returned from a scheduled deployment to Afghanistan. She said she considers herself among the hundreds of U.S. war resisters who have fled to Canada as "conscientious objectors."

Most have had no success in securing refugee status, but Justice de Montigny concluded that Pte. Smith's sexual orientation puts her in a more sympathetic category. "She could be punished not only on AWOL [absent without leave] and desertion charges, but also for simply being gay," he wrote.

Additional reading: Exclusive interview with feisty lesbian war resister Skyler James

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René

at 20:32 on November 23rd, 2009

conscientious objector! WTF did she join up for? This isn't like being drafted.

didn't she sign up to go to Afghanistan, or whatever?

Oh, lo, she's gay. so that means she gets special treatment?

Lo, the poor gay.

I'm sorry, Rhonda, but this is going too far.

Rhonda J Mangus

at 20:37 on November 23rd, 2009

No problem, Rene!:) It appears that Pte. Smith had every intention of serving her country until she was outed and military life took a turn for the worse.

Karl Gotthardt - albertacowpoke

at 20:25 on November 23rd, 2009

Most of these cases end up in the Supreme Court eventually and have in the past.

Technically speaking shouldn't the U.S Army release her now that she has revealed she is gay? Isn't that what that DADT rule is all about?

The fact that the army told her they wouldn't do the paperwork until she returns from Afghanistan is hypocritical and deserves follow up.

I doubt that she will be granted refugee status. but it should buy her time to go after the way the army handled the DADT rule.

Several US deserters have been deported and most of them spend up to five years in Canada.

Rhonda J Mangus

at 20:34 on November 23rd, 2009

"The fact that the army told her they wouldn't do the paperwork until she returns from Afghanistan is hypocritical and deserves follow up."

Thanks, ACP! Of course it's hypocritical. However, should anyone expect anything more from the U.S. Military (Pentagon)?:)

Rhonda J Mangus

at 23:29 on November 23rd, 2009

Rene, another PS:). My comment to Roy should also help explain your question. Thanks!:)

Rhonda J Mangus

at 23:30 on November 23rd, 2009

No doubt people pretend, Babel-Fish:)! But, I am not going to speculate here:)! Thanks for reading, commenting, and for the rec!

Rhonda J Mangus

at 23:31 on November 23rd, 2009

Very good news, generaldecay! Thank you for reading, commenting, and for the recommendation!

YankeeJim

at 04:23 on November 24th, 2009

What a shame that one would have to flee the USA because the nation's policies toward gays is so biased an unAmerican.

Hugh Askew

at 04:46 on November 24th, 2009

First things first. She is in the military voluntarily. Means she agreed to the rules.

The military has - or is supposed to have - discipline, for the good of the group, the unit, and eventually the country. Discipline breaks down, or isn't enforced, soon there is no military.

Appears the "don't ask, don't tell" policy wasn't adhered to...which led to further problems. Dumb. That is lack of discipline.

I wouldn't be surprised if the girl didn't grow up with divorced parents, and learned to to play one against the other till she got her way. Spoiled.

To further muck things up, Canada gets all officious in the matter. We may need to invade.

Rhonda J Mangus

at 21:27 on November 23rd, 2009

PS Rene: and military life took a turn for the worst before Afghanistan.

Babel-Fish

at 21:40 on November 23rd, 2009

I really do thing the gay factor is an excuse the main factor she got scared about going to Afghanistan and that I don't blame her for.

I expect if she went back to face the music, she would get a small sentence and chucked out.

I expect she is just pretending to be gay, I have seen people pretending to be mad trying to get out of the services.

Karl Gotthardt - albertacowpoke

at 04:22 on November 24th, 2009

She may have been afraid to go to Afghanistan but so do most to one degree or other. Only a nutcase would go there without some some degree of apprehension. As to pretending to be gay, I doubt that very much. Even in liberal Canada she would have been found out by now. The fact is that recruiters lied to her to meet quotas and then were hypocritical in their application of the DADT regulation.

A simple interview could have determined if she was faking her gay orientation. Of course with the DADT regulation they were not allowed to ask on her enrolment.

Karl Gotthardt - albertacowpoke

at 10:42 on November 24th, 2009

Make sure you winterize your vehicles, bring lots of extra batteries, snowmobiles (snow machines in Alaska) and working GPS systems. Remember we're the Great White North with pipelines all over to the US. Oh yeah you need an additive for your fuel too.

Canada is not acting officious though, she is being accorded the rights everyone else is under our laws.