Supreme Court Plenary Session: "Punishment for Sexual Relations and Similar Acts Between Same-Sex Soldiers Does Not Violate 'Military Discipline'"

Chief Justice Kim Myung-soo and other Supreme Court justices are seated on the afternoon of the 21st at the Supreme Court Grand Bench in Seocho-gu, Seoul, to deliver a ruling by the full bench on the punishment of same-sex sexual relations between soldiers outside the base and outside working hours.
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[Asia Economy Reporter Heo Kyung-jun] The Supreme Court has ruled that punishing sexual intercourse or similar sexual acts between same-sex soldiers in private spaces is difficult to view as a direct and concrete violation of the sound life and discipline of the military community.

Accordingly, precedents that judged sexual acts between male soldiers as "indecent acts" under military law without considering whether the acts were consensual in private spaces have been changed.

The Supreme Court en banc (Presiding Justice Kim Jae-hyung) on the 21st overturned the lower court’s guilty verdict in the appeal trial of military officers A and B, who were charged with indecent acts under military law, and remanded the case to the High Military Court.

Male soldiers A and B were tried for consensual sexual acts at a single-person dormitory outside the base during off-duty hours between 2016 and 2017. The military prosecutor applied Article 92-6 of the Military Criminal Act, which stipulates that those who commit anal intercourse or other indecent acts may be punished by imprisonment for up to two years.

The trial focused on whether consensual sexual acts between same-sex soldiers outside the base during off-duty hours fall under "anal intercourse or other indecent acts" as defined by the Military Criminal Act and are thus punishable.

The first trial recognized the charges as guilty, sentencing A to four years in prison with one year of probation and B to three months in prison with a suspended sentence. The second trial dismissed all appeals and upheld the first trial’s judgment.

However, the Supreme Court ruled that when sexual acts occur voluntarily and consensually in private spaces and do not directly and concretely infringe upon the sound life and discipline of the military community, the current Military Criminal Act provisions do not apply.

The en banc stated, "The representative element of the current provision, ‘anal intercourse,’ refers to a form of sexual intercourse and, by its wording alone, can occur between opposite sexes as well," adding, "It is not limited to acts between males, so an interpretation that the current provision punishes sexual acts solely between same-sex soldiers cannot be naturally derived."

It further stated, "The evaluation that sexual acts between same sexes objectively cause sexual shame or disgust to the general public and violate good sexual morals is difficult to accept as a universally valid norm in this era."

It continued, "The protected legal interests of the current provision include the traditional interests of ‘sound life and discipline of the military community’ as well as ‘the sexual self-determination rights of soldiers.’ An interpretation that punishes even cases where neither of these interests is infringed cannot be permitted," the court ruled.

The en banc also noted that punishing consensual sexual acts between same-sex soldiers without reasonable grounds excessively restricts the sexual self-determination rights solely because they are soldiers, potentially violating constitutionally guaranteed rights to equality, human dignity and worth, and the pursuit of happiness.

On the other hand, Justices Cho Jae-yeon and Lee Dong-won dissented, arguing, "The current provision should be seen as punishing anal intercourse or other indecent acts between male soldiers without restrictions on coercion, time, or place, and the elements should not be narrowly interpreted."

They argued that even if the sexual acts are consensual in private spaces, since the person involved is a member of the military community, the social legal interest of "military discipline" is infringed, so it cannot be excluded from punishment.

A Supreme Court official said, "This ruling is significant in that the Supreme Court declared that consensual same-sex sexual acts can no longer be regarded as acts worthy of punishment in themselves," adding, "It is noteworthy that a majority of justices pointed out that homosexuality is accepted domestically and internationally today as a natural sexual orientation."

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