Written by: Aarya Chaudhary
israel palacio/ Unsplash
In a landmark judgment in April 2022, the Supreme Court of South Korea ruled that the military should not punish consensual sexual acts by same-sex partners which occur in a non-military setting.  This ruling reversed the convictions of two male soldiers who were imprisoned in 2017 for engaging in consensual sexual acts in a non-military setting. The convictions followed a sweeping investigation that was carried out by the South Korean military in 2017 to identify and punish male soldiers suspected of engaging in sexual acts with other men.
These convictions were made under Article 92-6 of South Korea’s Military Criminal Act (‘the Act’) which states that:
‘A person who commits anal intercourse with any person prescribed in Article 1 (1) through (3) or any other indecent act shall be punished by imprisonment with labour for not more than two years.’
At a surface-level glance, the law may not appear blatantly discriminatory since it criminalizes both same-sex and heterosexual sodomy. However, there do not appear to be any cases in South Korea where the military investigated or punished heterosexual individuals under the Act. Therefore, in practice, the law disproportionately affects gay men.
South Korea does not have laws criminalizing same-sex sexual acts between civilians. However, military service is mandatory by law for all able-bodied men in the country which means that criminalization of same-sex sexual acts affects nearly all South Korean men, giving the Military Criminal Act a wide-reaching impact.
The South Korean government has defended the Act on multiple occasions, stating that by banning ‘indecent’ and ‘disgraceful’ conduct, it is necessary to ensure discipline in the predominantly male military. In the case of 2008 Hu-Ga-21 (Military Penal Code Article 92), Korea’s Ministry of Defence argued that Article 92-6 of the Military Criminal Act ‘was necessary to maintain military cohesion and morale’. The Constitutional Court supported this position and upheld Article 92-6 by a vote of five to four, the majority finding that individuals ‘with common sense and ordinary sensibilities’ would objectively consider homosexual acts to be unacceptable. This case reflects the prevalent historical tendency in South Korea to view homosexuality with antipathy. On the other hand, the four dissenting judges were of the position that the law was unconstitutionally vague because it did not clearly differentiate between consensual and non-consensual sexual activity.
In the present case, the Court’s decision to not apply the Act when individuals give their consent thus marks an active choice to depart from previous such rulings which punish homosexual acts regardless of whether it is consensual.
Deeper Consequences of the Military Criminal Act
According to an Amnesty International report, the Act goes beyond solely legislating to prohibit certain sexual acts: ‘it institutionalizes discrimination, reinforces systematic disadvantages for gay, bisexual and transgender people and risks inciting or justifying violence against them’. For homophobic and transphobic individuals, the Act can be seen as giving implicit permission to discriminate against LBGTQ+ people.
In 2015, the UN Human Rights Committee stated its concern ‘about the high number of cases of sexual, physical and verbal abuse in the military, and that only a small number of such cases are recorded and lead to indictment’. Article 92-6 reinforces a culture in which male survivors of sexual assault and rape may be unable to speak up due to a fear of being prosecuted or shamed. One victim of sexual abuse during his time in the military describes how, rather than punishing the perpetrator of the abuse, the victim’s superiors described him as ‘dirty’ and his actions as ‘perverted’. By justifying punishment of same-sex sexual acts and labelling them as ‘indecent’ within the legislation, Article 92-6 discourages victims of sexual abuse from reporting the harm for fear of being targeted and shamed by fellow soldiers.
Article 92-6 therefore gives rise to a troubling inconsistency: it provides for the prosecution of consenting men engaging in sexual acts while simultaneously facilitating the cover up of rape and sexual assault by discouraging men to come forward about this violence.
The Court’s Reasoning
In its judgment, the Court stated that if the sexual acts occurred in a non-military setting, while the soldiers were off duty, and with consent, the Act does not apply. It reasoned that criminalizing these acts would violate soldiers’ right to sexual autonomy, non-discrimination, equality, and dignity as guaranteed by the South Korean Constitution.
Supreme Court Chief Justice Kim Myeong-su stated that ‘The view that sexual activity between people of the same sex is a source of sexual humiliation and disgust for objective regular people and goes against decent moral sense can hardly be accepted as a universal and proper moral standard for our times’. In a press release, the court also stated that the decision constituted a ‘declaration that consensual same-sex sexual activity (among military service members) could no longer be considered as punishable in itself’.
Significance of the Decision
The April 2022 decision reversed the Supreme Court of Korea’s precedents upholding convictions of consensual sexual acts between soldiers without determining whether the acts took place in a non-military setting or not.
As Chief Justice Kim Myeong-su identifies, this case reflects a positive shift in South Korea’s historical perception of homosexuality as ‘indecent’ and decreases the contexts in which same-sex sexual acts can be punished.
Ryan Thoreseon, a researcher for Human Rights Watch notes the particular importance of this decision in light of South Korea’s apparent reluctance to address anti-LGBTQ+ stigma and discrimination. South Korea’s National Human Rights Commission has repeatedly called for comprehensive anti-discrimination legislation to punish discriminatory actions, including on the basis of sexual orientation, with fines or imprisonment. Such legislation has been proposed several times since 2007; however, it has never been passed due to opposition from the conservative bloc and politically powerful religious groups which forcefully advocate against protecting LGBTQ+ rights. For instance, an anti-discrimination bill introduced in June 2021 was vehemently opposed by Christian groups and was stalled in the legislature.
Despite this opposition, according to a 2020 report from the National Human Rights Commission, over 88.5% of individuals surveyed supported the passage of anti-discrimination law. This reflects a growing shift in the attitude of the South Korean population towards protection against discrimination, including on the basis of sexual orientation.
Amnesty International Researcher Boram Jang states that this ruling ‘should pave the way for military personnel to freely live their lives without the threat of prosecution’. However, progress remains to be made. Jang called for the South Korean government to ‘swiftly repeal Article 92-6 of the Military Code as the next step towards ending the pervasive stigmatization faced by LGBTI people in the country.’
This would be in line with the actions of governments such as the United States (which, in 2013, repealed Article 125 of the Uniform Code of Military Justice which criminalized sodomy) and the United Kingdom (which, in 2000, changed its policy preventing LGBTQ+ individuals from serving in the military).
South Korea’s Failure to Uphold International Law Commitments
According to a Human Rights Watch Amicus Brief, Article 92-6 violates numerous international law norms including the right to privacy and the right to liberty and security.
South Korea is party to several international treaties, under which it is obliged to protect the rights which these instruments guarantee. This includes the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture, Cruel, Inhuman, and Degrading Treatment. Furthermore, in 2014 and 2016, the UN Human Rights Council passed resolutions to implement measures preventing discrimination on the basis of sexual orientation. South Korea voted in favour of all of these resolutions. The country’s failure to pass national legislation aiming to prevent discrimination stands in stark contrast to these international commitments.
This case undoubtedly marks an important step forward in the fight for LGBTQ+ rights and reveals an evolution in the moral standards of the South Korean population, towards greater acceptance of the LGBTQ+ community. However, the sustained application of the Military Criminal Act continues to legitimize punishment of and antipathy towards homosexuality. As activists rightly identify, the next step should be to repeal Article 92-6. This is crucial in enabling South Korea to move towards a culture of acceptance both within the military and throughout the nation itself.
 Amnesty International, ‘South Korea: Landmark judgement on same-sex sexual acts in military a huge victory for LGBTI rights’ (Amnesty International, 21 April 2022)
<https://www.amnesty.org/en/latest/news/2022/04/south-korea-landmark-judgement-on-same-sex-sexual-acts-in-military-a-huge-victory-for-lgbti-rights/> accessed 20 October 2022.
 Military Criminal Act, Article 92-6.
 Human Rights Watch, ‘HRW Amicus Brief: Repealing Article 92-6 of the Republic of Korea’s Military Criminal Act’ (2019) https://www.hrw.org/news/2019/03/07/repealing-article-92-6-republic-koreas-military-criminal-act accessed 20 October 2022.
 2008 Hun-Ga21 (Military Penal Code Article 92) Constitutional Court of South Korea.
 Amnesty International, ‘South Korea: Serving in silence: LGBTI people in South Korea’s military’ (2019) Amnesty International Research Paper <https://www.amnesty.org/en/documents/asa25/0529/2019/en/> accessed 19 October 2022.
 Concluding observations of the Human Rights Committee: Republic of Korea, UN Doc. CCPR/C/KOR/CO/4 (2015).
 n 9.
 Associated press, ‘South Korea’s highest court overturns military convictions of two gay soldiers’ (The Guardian, 22 April 2022) <https://www.theguardian.com/world/2022/apr/22/south-koreas-highest-court-overturns-military-convictions-of-two-gay-soldiers> accessed 19 October 2022.
 Kim Tong-Hyung, ‘S. Korea's top court overturns convictions of gay soldiers; (ABC News, 21 April 2022) https://abcnews.go.com/International/wireStory/koreas-top-court-overturns-convictions-gay-soldiers-84210998 accessed 19 October 2022.
 n 12.
 Ryan Thoreson, ‘South Korean Court Limits Military ‘Sodomy’ Law (Human Rights Watch, 25 April 2022) https://www.hrw.org/news/2022/04/25/south-korean-court-limits-military-sodomy-law accessed 19 October 2022.
 Republic of Korea 2020 Human Rights Report https://www.state.gov/wp-content/uploads/2021/10/KOREA-REP-2020-HUMAN-RIGHTS-REPORT.pdf accessed 19 October 2022.
 n 3.
 Joint Public Statement ‘National Assembly of South Korea should act swiftly to enact anti-discrimination legislation’ (Human Rights Watch, 11 November 2021) https://www.hrw.org/news/2021/11/11/national-assembly-south-korea-should-act-swiftly-enact-anti-discrimination accessed 18 October 2022.