[News analysis] Upholding Korean military’s sodomy law, Constitutional Court turns blind eye to homophobic basis

Posted on : 2023-10-31 17:04 KST Modified on : 2023-10-31 17:04 KST
A closer look at four rulings upholding the provision shows shifting interpretations of “indecent acts” at its center
Sexual minorities don military uniforms and carry a rainbow flag as they protest and call for an end to the punishment of soldiers for same-sex sex acts on July 5, 2017, outside of the Sejong Center in Seoul. (Yonhap)
Sexual minorities don military uniforms and carry a rainbow flag as they protest and call for an end to the punishment of soldiers for same-sex sex acts on July 5, 2017, outside of the Sejong Center in Seoul. (Yonhap)

On Thursday, South Korea’s Constitutional Court deemed a clause banning gay sex in the country’s military penal code constitutional for the fourth time, despite the article’s standing as one of Korea’s most prominent anti-LGBTQ provisions.

In its current form, Article 92-6 of the Military Criminal Act prescribes punishment for soldiers who commit “anal intercourse” or “any other indecent act” regardless of the gender of the actor. However, in practice, it only applies to sexual acts between male soldiers, regardless of when and where it happened and whether the act was consensual.

For many decades this provision has been criticized as unconstitutional as it includes consensual sexual acts between male soldiers, but the court has always stated that it is in line with the principles of nulla poena sine lege (“no penalty without law”), proportionality and equality.

However, when, on Friday, the Hankyoreh examined the four conclusions issued by the court over the past 20 years, we found that the definition of “indecent act” as set forth in the Military Criminal Act has varied over time.

Is consensual sex punishable? Court turns blind eye to discrimination

When enacted in 1962, Article 92-6 of the Military Criminal Act stipulated punishments for soldiers for “intercourse or other indecent acts,” but in 2013, “intercourse” was replaced with “anal intercourse,” and the wording has since been retained.

For 60 years, the text of the law has remained largely the same, but the targets of punishment have changed. This is because the court has been passively adjusting its stance on military sexual offenses in response to changes in the times, minority opinions within the court, and changes in Supreme Court precedents.

In 2002, the Constitutional Court deemed “consensual kissing and hugging between male soldiers” to be punishable. The court saw fit to punish male soldiers who engaged in “behavior not limited to intercourse that would be assessed as indecent by a layperson” and cited kissing and hugging as examples of behavior “not limited to intercourse,” stating that “it is impossible to anticipate and enumerate all forms of deviant sexual gratification in advance.”

It did not answer the minority opinion that asked whether consensual, clandestine sexual activity between male soldiers could constitute indecency. This attitude continued in 2011.

In 2016, the court was forced to narrowly interpret the acts subject to punishment to include sexual acts between male soldiers that were “not accompanied by coercion such as assault or intimidation, and did not take advantage of a state of loss of mind or incapacity to resist.”

This is because the meaning of “indecent act” had to change since separate offenses of “indecent acts by force” and “quasi-indecent act” were newly incorporated in the Military Criminal Act in 2009. At the time, the court explained that the provision was necessary to cover “indecent acts carried out with force,” not covered by “indecent acts by force” or “quasi-indecent acts,” but it still avoided answering the question of how it would view consensual sexual acts between male soldiers.

Seven years later, while upholding the military’s ban on gay sex for the fourth time, the Constitutional Court changed its stance again on Thursday, saying that only “forceful indecent acts between soldiers of the same sex” and “sexual acts between soldiers of the same sex outside private spaces” are punishable.

This is the most minimal reflection of the Supreme Court’s ruling in 2022, which said that indecency charges cannot be applied to consensual sexual acts between soldiers of the same sex in private spaces. The Constitutional Court’s recent ruling has been criticized as irresponsible, as the Military Criminal Act’s indecency clause is upheld in the name of punishing indecent assault by force between men, while failing to address the absence of punishment for sexual violence between soldiers of the opposite sex in the military.

“The court talks about this as if it is an article meant to protect victims of sex crimes in the military, but if they are really worried about indecent acts by force, they should remove this provision and create a provision that prevents indecent acts by force regardless of gender or a new crime concerning non-consensual intercourse,” said Park Han-hee, lawyer Korean Lawyers for Public Interest and Human Rights.

“It is a clear discrimination that only sexual acts between soldiers of the same sex on the premises are subject to criminal punishment, while sexual acts between those of the opposite sex end only in discipline,” she added.

What’s the point of a court that claims “homosexuality brings down morale”?

Over the past two decades, the Constitutional Court has grudgingly narrowed the scope of the Military Criminal Act’s indecency clause, but it hasn’t addressed the deep-seated prejudice that equates homosexuality with abnormality.

Especially when it comes to the principle of proportionality of this provision, the court has demonstrated its discriminatory stance that views same-sex sexual activity as abnormal.

The court noted that “virile young male conscripts are forced to live in closed groups for long periods of time, sharing living spaces such as living quarters and showers. To make them bear the burden of worrying that they may be the target of sexual acts by other fellow soldiers with whom they live can adversely affect the morale of the entire military.”

These were the grounds the court gave as the necessity of punishing same-sex sexual activity. In other words, the presence of gay or bisexual men on military grounds lowers the morale of the South Korean military.

Hong Sung-soo, a professor of law at Sookmyung Women’s University, said, “There is no other way to interpret this provision than that it is predicated on the intention to punish homosexuality. Leaving an article as vague as this in the Constitution leaves room for investigative agencies and courts to interpret it broadly.”

“The court’s attitude of ‘it’s not unconstitutional because we can impose a narrow interpretation’ is irresponsible. One cannot help but ponder on the existence of a court that fails to find an outright discriminatory provision as unconstitutional,” Hong added.

By Lee Ji-hye, staff reporter

Please direct questions or comments to [english@hani.co.kr]

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