By C.J. Raven
U.S. Veteran Dispatch
Sep 23, 2009

A 21-year-old American lesbian deserter fleeing from her U.S. Army assignment to Afghanistan is awaiting the decision of a Canadian court to know if she will be granted sanctuary in Canada.

Pfc. Bethany Smith told the court this month that she fears punishment by the Army if she returns to the United States, and she's asking for refuge in Canada.

The Canadian Immigration and Refugee Board denied sanctuary to Smith, who began using the name Skyler James when she entered Canada two years ago. She has appealed the case to that country's federal court.

Smith's lawyer, Jamie Liew, said she knows of no lesbian or gay American soldier who has been granted refugee status in Canada or elsewhere based on sexual orientation.

Smith, 19 at the time, claims fellow soldiers persecuted her and threatened her with death because of her sexual orientation. She said she asked for a discharge, but instead was to be deployed to Afghanistan as a mechanic.

Smith contends the army broke its policy of discharging openly gay members because it needed soldiers in Afghanistan.

"I asked for a discharge and they said we'll figure out the paperwork after I got back," she said in an interview.

The U.S. military has a widely-known and controversial "Don't Ask-Don't Tell" rule gays and lesbians to be discharged if they reveal their sexual orientation. President Barack Obama has said he will end the policy, implemented during former president Bill Clinton's administration, but has taken no action. Smith was aware of the rule when she enlisted.

Smith's sexual orientation became known, she said, when another soldier saw her publicly holding hands with another woman. Smith, in documents filed with the court, said that afterwards she was harassed every day, assigned extra work by superior officers and received anonymous hate mail every night, including one letter stating: "We will suffocate you in your sleep."

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

"There's no evidence that she faces tougher sentencing treatment because of her sexual orientation," said Harvey, who added that Smith joined the army voluntarily.

Refugee status, Harvey said, should not be granted simply because Smith faces prosecution in her home country. Furthermore, Harvey questioned why Smith, in seeking a discharge, never told her supervisor about the badgering and the threats she says she endured.

The Canadian Court of Appeal, in a ruling two years ago dealing with two other American military deserters, noted that the vast majority are punished with dishonorable discharges.

Canadian news service CBC quoted Smith as telling reporters, "I had to endure not only verbal and physical harassment, but death threats and harassment letters on my door every day."

Smith also claimed that her treatment at the hands of her fellow soldiers was "less than human," including frequent physical assaults from a male colleague while others looked on. "There were sergeants standing around laughing with him," Smith said.

Smith claimed she would face a tribunal composed of the same people with whom she had served and from whom she was ostensibly fleeing in fear for her life when she went to Canada.

"The same people who are causing you problems" would be the ones deciding her fate, Smith said.

An Ottawa Citizen article included a quote from Smith in which she said, "I asked for a discharge and they said we'll figure out the paperwork after I got back" from Afghanistan.

Smith said she requested a discharge from her first sergeant before she was scheduled to be deployed, but failed to pursue her request further up the chain of command.

"I was scared more of people who were supposed to be watching my back than the insurgents," she said.

Smith then drove to the border at Cornwall, Ontario, where the War Resisters Support Campaign helped her move to Ottawa where she works now at a call center.

The Ottawa Citizen article also quoted Brian Harvey, a federal attorney, who denied that there was reason to think that Smith would be subjected to harsher disciplinary action due to her sexuality.

"There's no evidence that she faces tougher sentencing treatment because of her sexual orientation," Harvey said.

Other U.S. deserters have failed in their appeals to Canadian courts, and some are serving prison terms, usually about 18 months, after being deported. However, Liew said earlier court rejections shouldn't have any bearing on Smith's case.

Most other deserters who have sought refugee status in Canada said they opposed the war, and fled to avoid being deployed to Iraq. Liew believes that in addition to threats to her life, Smith would face military charges of desertion, absence without leave and indecency.

"Because it is a crime to be engaging in homosexual activity under the military criminal provision," Liew said.