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Constitutional Court President Park Han-chul (centre) sits with other justice before the trial on the case of a jurisdiction dispute filed by ruling Saenuri Party lawmakers

On July 28, the same day that the Constitutional Court handed down a decision finding all of the contested provisions in the anti-corruption “Kim Young-ran Act” constitutional, another important but little-noted sentence was also being handed down. The case was a challenge to the constitutionality of Article 92-5 of the old Military Criminal Act (now 92-6) punishing homosexual acts between soldiers.

The provision in question had been up for Constitutional Court review twice in the past. In 2002, the court ruled six-to-two in favor of Article 92’s constitutionality; in 2011, the ruling was five-to-four in favor. The third and latest decision saw the judges affirming its constitutionality once again in a five-to-four ruling. Six out of nine judges must present opinions against a law’s constitutionality for it to be ruled unconstitutional.

The United Nations has previously declared discriminatory laws against homosexuality around the world to be in violation of the organization’s International Covenant on Civil and Political Rights, which states that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground.”

A 2011 study by the UN High Commissioner for Human Rights showed at least 76 countries with laws on the books punishing sexual orientation. In the US, discriminatory laws went away with the Supreme Court‘s 2003 ruling in Lawrence v. Texas, with the justices ruling six-to-three that the state’s “sodomy laws” punishing sexual acts between gay people were unconstitutional. In 2014, regulations in the United States Code of Military Justice punishing acts of anal intercourse between soldiers were changed to punish only “sexual intercourse by force and without consent” - thus removing punishments for acts of consensual intercourse between gay people.

While South Korea has adopted virtually all of the US‘s military criminal code, the latest decision leaves its own version of the sodomy law in place. Article 92-5, which was the subject of review, prescribes up to two years in prison for soldiers, civilian military employees, and military cadets who “commits sodomy or other disgraceful conduct.”

The UN has consistently called on the South Korean government to abolish the law. In Nov. 2015, its Human Rights Commission of Korea released a final recommendation stating that Seoul should send the clear message that it does not condone any form of social stigma or discrimination on the basis of sexual orientation. It also recommended that Article 92-6 of the Military Criminal Act be abolished.

The National Human Rights Commission of Korea also released an opinion in Oct. 2010 - just before the Constitutional Court’s second hearing on the provision - stating that it “violates the equal rights, rights of sexual self-determination, privacy, and freedom of homosexuals and the principle of legality.”

Despite the domestic and international pressure, the Constitutional Court upheld the provision’s constitutionality.

“In the military, there is a markedly high potential for abnormal acts of sexual intercourse to take place between members of the same sex and a strong likelihood for superiors to attempt homosexual acts with subordinates,” wrote justices Park Han-chul, Lee Jung-mi, Kim Chang-jong, Ahn Chang-ho, and Seo Ki-seong in the majority opinion. “If left alone, this presents a serious risk of direct harm to the preservation of fighting strength.” Their reason was that the special characteristics of the military as an organization justified discriminatory treatment compared to soldiers engaged in heterosexual acts.

The dissent was written by justices Kim Yi-su, Lee Jin-sung, Kang Il-won, and Cho Yong-ho. In it, they argued that because consensual sexual acts could not be seen as having a direct bearing on the preservation of military fighting strength, and should therefore be excluded from criminal punishment as a rule.

Noting the lack of clarity in the provision under review, the justices added, “This leads to an unreasonable situation in which consensual sexual acts with no forcible element are subject to the same punishment according to the same criminal provisions as the most forcible of acts, namely ’molestation by force or intimidation.‘”

They went on to criticize the majority decision in favor of the provision’s constitutionality by noting that it was “makes it utterly impossible to determine whether punishment applies only to indecent acts between males, whether indecent acts between females or with members of the opposite sex will also be punished, or if it also includes punishment for molestations of members of the general public by soldiers.”

Attorney Han Ga-ram from the group Korean Lawyers for Public Interest and Human Rights, who represented the side challenging the provision‘s constitutionality, said, “The question of whether punishments of homosexual acts violate the Constitution is an essential matter, yet the court’s majority decision made no judgment at all on that.”

The ruling suggests more time will be needed before the military‘s punishments of homosexuality are abolished.

By Kim Ji-hoon, staff reporter

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