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Sexual acts between same-sex soldiers are OK, but sex on base is not, top court rules

Published: 12 May. 2025, 21:23

Consensual sexual acts between soldiers of the same sex are fine, but having sex on base or during duty hours constitutes a breach of military discipline, Korea's top court ruled.

Last month, the Supreme Court overturned a lower court’s acquittal of a former soldier who had engaged in sexual activity with a fellow service member and returned the case to the Uijeongbu District Court for retrial.

The former service member was indicted for two separate incidents with the same fellow soldier: one involving sexual activity in a barracks during off-duty hours and another when the two had a sexual encounter in a bathroom when one was on duty.

Under Article 92-6 of the Military Criminal Act, “anal intercourse or other indecent acts” are punishable by up to two years in prison.

While consensual same-sex acts were previously punished without exception under the law, a 2022 Supreme Court en banc ruling found that such acts — when conducted off base and outside duty hours — did not necessarily constitute a breach of military discipline. The court recognized them as a matter of sexual self-determination within the private sphere.

This latest decision marks the first time the court has established a practical standard for what constitutes a disciplinary breach following that precedent.

The Supreme Court in southern Seoul [NEWS1]

At trial, the defendant received a suspended four-month sentence. A higher court later acquitted him in light of the 2022 ruling. The Supreme Court, however, has now reversed that verdict.

The court reiterated that same-sex relations are not immoral by current societal standards. However, it found that sexual activity inside military barracks or involving an on-duty soldier represents “a direct and specific violation of military discipline,” and therefore constitutes a criminal offense under military law.

“A soldier is subject to military regulations and control throughout their service, except in limited cases such as leave or furlough,” the court stated.

“Military barracks are governed by strict discipline and hierarchy, and a service member performing night watch is clearly carrying out a mission. Even if consensual, sexual activity in such settings falls within the scope of indecent conduct punishable under the Military Criminal Act.”

Translated from the JoongAng Ilbo using generative AI and edited by Korea JoongAng Daily staff.
BY KIM JEONG-YEON [[email protected]]