South Korea’s Supreme Court ends military ban on consensual gay sex
South Korea’s highest court struck down the country’s ban on consensual gay sex in its military, finding that the ban is not in line with contemporary understanding of what constitutes indecency. Activists had long criticized the ban as essentially criminalizing gay people who are forced into the military as part of the nation’s compulsory service.
Although gay sex is not illegal under South Korea’s civilian Penal Code, it is banned under the 1962 Military Criminal Act’s Article 92-6, which states that “A person who commits anal intercourse… or any other indecent act shall be punished by imprisonment with labor for not more than two years.” The ban is categorized under the Act’s section on rape and indecency and does not consider whether the intercourse was consensual or not.
The April 21 court ruling found that the law cannot be applied to consensual acts that take place outside of military bases or during off-duty hours.
“The specific ideas of what constitutes as indecency has changed accordingly with the changes in time and society,” Chief Justice Kim Myeong-su said in the decision. “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.”
The Court sent the case back to the military court to be retried, but a decision appears moot.
The case stemmed from two servicemen who were arrested in 2017 amid a much-criticized crackdown on homosexuality in the military. At least nine men were caught in the sweep.
The Defense Ministry said it would “carefully examine” the ruling while it proceeds with the case.
The decision was a big victory for LGBT rights activists in the country, particularly as the law had previously been upheld by the Constitutional Court in 2011 and again in 2016. In the wake of the ruling, Seoul-based Center for Military Human Rights called on courts to acquit all men charged under Article 92-6, and called on legislators and the Constitutional Court to fully repeal the law.
Newly elected South Korean President Yoon Suk-yeol, who assumes office May 10, told Human Rights Watch during the election campaign that he supported maintaining the criminalization of gay sex in the military.
All men in South Korea are required to serve in the military for up to two years between the ages of 18 and 30, so queer South Koreans could not easily avoid the reach of the law by declining military service.
The South Korean military also considers lesbian, gay, bisexual, and trans people unfit for military service, but acquiring such an exemption can cause scandal and harm the employment prospects of those who are rejected or dishonorably discharged from the military.
The decision leaves the service exclusion for LGBT people in place, but removes criminal prosecution as a possible penalty for gay sex.
