South Korea: Pressure to End Discrimination in the Military Mounts

The Network for Reporting the Violation of the Human Rights of Sexual Minorities in Relation to the Military in Korea is pressuring the Constitutional Court in that country for a legal judgment about the unconstitutionality of Article 92 of the Military Criminal Act which criminalizes those who engage in sodomy and/or other indecent acts with imprisonment for a maximum of 1 year.

The push to question the constitutionality of Article 92 originated from the Korean Army’s Normal Military Court of the 22nd Infantry Division in August 2008. The military court argued that Article 92 violates equal rights, the right to sexual self-determination, and the right of privacy. The South Korean government responded in November 2008 by asking the Constitutional Court to confirm the ban on gays serving in the military.

In its petition to the Constitutional Court, the military court cited the following reasons for the repeal of Article 92:

  • The use of the term sodomy reflects an inherent—and inappropriate—degree of prejudice in the law. The petition states that, “Sodomy, as described in Article 92, denigrates a particular sexual act by likening it to an act performed on an animal. This hateful language designates even a consensual sexual act as an ‘indecent act,’ as if homosexuality itself were but a type of sexual violence…. The Korean word for sodomy in Article 92 must be replaced by a more neutral and objective word or removed altogether.”

    The National Human Rights Commission of Korea supports this position. In its 2007-2011 recommendations to protect human rights it emphasized that Article 92 revealed discrimination and prejudice against homosexuality, promoting homophobia. The Commission recommended that the Ministry of National Defense reform Article 92 of the Military Criminal Act.

  • Article 92 violates equal rights and individual privacy. According to the petition, “indecent acts” as defined under Article 92 include only sexual acts between same-sex couples; acts between opposite-sex couples are not included. Moreover, as the petition notes, the article is discriminatory in its application. Those involved in consensual same-sex relations are punished “even if no one has been harmed, rank has not been used unjustly, and coercion is absent.” In 1999, Article 92 was used to punish military personnel who were caught having consensual same-sex relations.
  • The ambiguity of the term "sodomy and/or other indecent act” in Article 92 is inadequate for determining the innocence or guilt of an accused person. Article 92 can be arbitrarily used since it fails to provide any concrete criteria for judgment with reference to the types of acts involved and whether consent is provided.

Almost six months have passed, and the Constitutional Court has yet to make any legal judgment on this request.

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