Constitutional Court Upholds 'Military Homosexuality' Punishment Clause... "May Undermine Military Discipline"

Constitutional Opinion: "Sexual Acts Can Occur Through Use of Superior Position or Power"
Unconstitutional Opinion: "If There Is Voluntary Consent, It May Not Be Considered 'Molestation'"

The Constitutional Court has ruled that the military criminal law punishing homosexuality within the military does not violate the Constitution.

Chief Justice Yoo Nam-seok of the Constitutional Court and the constitutional justices are seated before the start of the ruling on the constitutional review request and jurisdictional dispute trial held on the 26th at the Grand Bench of the Constitutional Court in Jongno-gu, Seoul. [Image source=Yonhap News]

On the 26th, the Constitutional Court made a constitutional ruling with a 5 (constitutional) to 4 (unconstitutional) decision in the case of constitutional review of Article 92-6 (indecent act) of the Military Criminal Act.

The provision under review stipulates that a person who commits anal sex or "other indecent acts" shall be punished by imprisonment for up to two years.

A and B, who served as soldiers in the Army, were prosecuted on charges of engaging in homosexual acts. In June 2016, after the defendants were discharged, the ordinary military court transferred the case to the Incheon District Court. The Incheon District Court decided ex officio to request a constitutional review regarding the "other indecent acts" part of Article 92-6 of the Military Criminal Act.

The Constitutional Court judged, "It is determined that military personnel and civilian employees subject to the Military Criminal Act, who possess sound common sense and ordinary legal sensibility, can sufficiently understand whether any act falls under the elements of the provision in question, so this provision does not violate the principle of clarity under the principle of legality."

It added, "Since the military operates under a vertical hierarchical order of command and obedience, it is easy for sexual acts against the will of the other party to occur by utilizing the superior position or power of a superior, which can ultimately directly and concretely infringe upon the sound life and discipline of the military community. Therefore, even in cases without direct violence or threats, punishment is necessary for indecent acts between homosexual soldiers involving coercion or lacking voluntary consent."

On the other hand, Justices Kim Ki-young, Moon Hyung-bae, Lee Mi-seon, and Jeong Jeong-mi expressed dissenting opinions, stating, "Although there was mutual consent regarding sexual acts between homosexual soldiers, it remains unclear whether acts committed in non-private spaces such as barracks fall under 'indecent acts' punishable under this provision. If there was voluntary consent between homosexual soldiers, even sexual acts conducted in non-private spaces may no longer be interpreted as 'indecent acts.'"

Additionally, Justices Kim Ki-young, Lee Mi-seon, and Jeong Jeong-mi opined that the Military Criminal Act provision violates the principles of proportionality and equality, infringing upon soldiers' sexual self-determination rights and the secrecy and freedom of privacy, thus deeming it unconstitutional.

This content was produced with the assistance of AI translation services.