Constitutional Court upholds punishment of soldiers for homosexual acts

Social Affairs

Published: 26 Oct. 2023, 20:37

Constitutional Court upholds punishment of soldiers for homosexual acts

Justices at the Constitutional Court on Oct. 26 in Jongno District, central Seoul. Yoo Nam-seok, the chief justice seats at the middle. [YONHAP]

The Constitutional Court on Thursday upheld the constitutionality of a legal provision punishing soldiers for engaging in homosexual acts.

The ruling came six years after the case was handed to the Constitutional Court.

Five of nine justices on the bench ruled the legal provision in question constitutional.

Article 92-6 of the Military Criminal Act stipulates that Korean soldiers or military personnel who engage in anal intercourse or "other indecent acts" face up to two years in prison.

The judges who upheld the law ruled that sexual activity within the military could adversely affect healthy living and discipline within the military community.

The court also superiors could use their power to abuse lower-ranking soldiers, making punishment necessary.

Even if both parties consented to the sexual acts, the military’s combat power could be harmed if the activity took place on duty, the court ruled.

The judges stressed the military’s sacred job of securing the country.

And thus, the court said punishing soldiers for same-sex activities was “not an excessive restriction.”

As for why same-sex soldiers were banned from having sex while soldiers of different sexes were not, the judges said the former could put the chain of command and military hierarchy at risk.

However, the four other judges deemed the punishment unconstitutional, arguing that criminally punishing soldiers who did not commit acts by force in the name of “abstract” public interests placed severe restrictions on an individual’s sexual preferences.

The dissenting judges claimed that punishment even violated the principle of equality.

Two soldiers accused of engaging in homosexual activities were to be tried by a military court in 2016.

However, the case was delivered to Incheon District Court when the two were discharged in June of that year.

However, the Incheon judge considered the article punishing soldiers for homosexual acts a violation of the constitution’s fundamental protections and asked the Constitutional Court to judge on the law's constitutionality in April 2017.

BY CHOI SEO-IN [lee.soojung1@joongang.co.kr]