S. Korean Supreme Court rules consensual same-sex sex acts between soliders are not punishable

Posted on : 2022-04-22 18:17 KST Modified on : 2022-04-22 18:17 KST
Multiple soldiers who had been charged with violating the Military Criminal Act for assault had their guilty verdicts reversed by the nation’s highest court
Chief Justice Kim Myeong-su delivers the Supreme Court's verdict on a case pertaining to the punishment of soldiers for same-sex sex acts on April 21. (Yonhap News)
Chief Justice Kim Myeong-su delivers the Supreme Court's verdict on a case pertaining to the punishment of soldiers for same-sex sex acts on April 21. (Yonhap News)

The South Korean Supreme Court ruled that soldiers of the same sex who have consensual sex in a private space cannot be charged with assault according to the Military Criminal Act. Previously, the Supreme Court had ruled that male soldiers can be charged with assault under the law for having sex with each other regardless of consent, but the latest decision has set a new precedent regarding what is considered a crime within the military.

On Thursday, the Supreme Court reversed the guilty verdict of A and others who had been charged with assault according to the Military Criminal Act, sending the case back to the High Court for Armed Forces.

In their ruling, 8 of the 13 Supreme Court justices stated that “the [assault clause] of the Military Criminal Act cannot be applied in cases in which it’s difficult to say that consensual sex acts in private spaces directly and specifically encroached upon healthy living and military discipline within this community known as the military.”

The ruling continued, “‘Anal sex’ is possible between individuals of the opposite sex. The existing regulation cannot be interpreted to specifically target sex acts between individuals of the same sex.”

A, a male officer, and B, a male non-commissioned officer, had consensual sex at the bachelor enlisted quarters located outside their barracks after work hours in September and December of 2016. A also had sex with another male soldier on multiple occasions between September of that year to February the following year. For this, A and others were indicted for violating the Military Criminal Act. Article 92-6 of the act stipulates that “a person who commits anal intercourse with [military persons] or any other indecent act shall be punished by imprisonment with labor for more than two years.”

The court in charge of the defendants’ first trial sentenced A to four months in prison and one year of probation while handing B a suspended sentence of three months on probation. The second court upheld this decision. The Supreme Court stated that “it has become difficult to accept the view that sex acts between individuals of the same sex objectively trigger sexual humiliation and disgust among the general public and run counter to virtuous sexual morals,” suggesting that the changing times somewhat influenced the court to throw out the original ruling.

Lim Tae-hoon, head of the Military Human Rights Center who has been supporting A, said after the Supreme Court ruling that “the unjust law that punished consensual sex between individuals of the same sex in South Korea will die out.”

By Jeon Gwang-joon, staff reporter

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

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