Constitutional Court of Korea rules the crime of “disgraceful conduct” in the Military Criminal Act as constitutional for the third time
On July 28, 2016, the Constitutional Court of Korea ruled the crime of “disgraceful conduct” in the Military Criminal Act to be constitutional. This was the third decision made, following those in 2002 and 2011.
Article 92-6 of the Military Criminal Act stipulates that “anal intercourse or other disgraceful conduct” between military or paramilitary persons (civilian employee of the military, officer candidates, etc.) “shall be punished by imprisonment with labor for not more than two years”. This provision was amended as it is in March 2013, and in the past it stated that “a person who commits gyegan or other disgraceful conduct shall be punished by imprisonment with prison labor for not more than two years”.
This provision remains controversial and has been called a “de facto law punishing homosexuality”. In particular, in 2008, the Supreme Court ruled, "the term ‘disgraceful conduct’ in article 92 of the Military Criminal Act refers to homosexual acts that have not reached gyegan (anal intercourse), which cause disgust to the general public from an objective point of view and go against “good sexual morality”. Meanwhile, the military court viewed the crime of “disgraceful conduct” in the Military Criminal Act as being unconstitutional and unprecedentedly requested an adjudication of constitutionality on its own motion, which raised social interest on the provision.
However, the Constitutional Court once again ruled the crime of “disgraceful conduct” in the Military Criminal Act (formerly Article 92-5 of the Military Criminal Act) to be constitutional. This was about three months before the government was expected to report to the United Nations Human Rights Committee on the implementation of the recommendation to abolish the crime of “disgraceful conduct” in the Military Criminal Act, which it was requested to do within one year of the review. The Constitutional Court decided that the provision neither violates the rule of clarity in “nulla poena sine lege” nor infringes upon the right of sexual self-determination, privacy and freedom of private life, or personal liberty of the soldier. The Constitutional Court also stated that even if homosexual soldiers were to receive discriminatory treatment compared to heterosexual soldiers, this would not violate the principle of equality as it could be seen as a measure with reasonable grounds considering the need to preserve the uniqueness and combat strength of the military.
The Constitutional Court, in regards to this provision that criminalizes homosexuality by grouping together homosexuality and sexual violence, has accepted the discriminatory logic, based on homophobia and fear, against sexual orientation. This was criticized as a violation of the Constitution and international human rights law.
Successful 10,000-person legislative petition for the abolishment of the crime of “disgraceful conduct” in the Military Criminal Act
In October 2016, the “Network for Reporting Discrimination and Human Rights Violation against LGBTI in Relation to the Military (Military LGBTI Human Rights Network)” criticized the above Constitutional Court decision and initiated a 10,000-person legislative petition movement for the abolishment of the crime of “disgraceful conduct” in the Military Criminal Act. By January 2017, 12,207 people participated in the legislative petition. On January 1, 2017, the Military LGBTI Human Rights Network submitted the legislative petition to the National Assembly with the aid of MPs Kim Jong-dae and Lee Jung-mi of the Justice Party. The Military LGBTI Human Rights Network said at the press conference for the submission of the legislative petition, held at the National Assembly, that "the legislative petition for the abolishment of the crime of ‘disgraceful conduct’ in the Military Criminal Act is to strongly urge the National Assembly to implement its duties, which include protecting the rights of social minorities and the disadvantaged”, and demanded that "the demands of the 12,270 people who participated in the legislative petition in the streets, schools and workplaces should not be overlooked”.
Complaint alleging the discriminatory application of the crime of “disgraceful conduct” in the Military Criminal Act to a gay soldier filed to the National Human Rights Commission of Korea
On April 25, 2014, a gay submitted a complaint to the National Human Rights Commission of Korea (hereinafter “NHRCK”), saying that he was charged with the crime of “disgraceful conduct” under the Military Criminal Act and was subject to human rights violations including forced detention in the military. The incident was brought to light owing to the notification by the victim to human rights organizations and the statements of witnesses who were fellow soldiers.
In 2014, two soldiers in the 37th Infantry Division were investigated for sexual contact. The soldier who revealed that he was a gay when drafted received a suspension of prosecution under Article 92-6 of the Military Criminal Act and was in effect put in forced detention in the Division medical office, deprived of day pass, overnight leave, vacation, telephone and internet use, for five months until he was discharged in May 2015. On the other hand, the other soldier, who claimed to have been subject to involuntary sexual advances as a heterosexual, was not punished.
Even though the soldier who claimed to be gay was of lower rank and had a small frame, and there was circumstantial evidence the sexual act was not forced, he was treated as offender because of his homosexuality. If a soldier molests another soldier, he should be punished under the “Indecent Act by Force” provision of the Military Criminal Act; however, in this case the gay soldier was prosecuted under Article 92-6 of the Military Criminal Act, which received criticism for being a discriminatory application of the law against gays.
Human rights organizations filed complaints and held a press conference to point out the rampant homophobia and discrimination in the military and demand that “the Ministry of National Defense actively take measures to prevent recurrence”. They also urged the NHRCK to conduct a thorough investigation into the truth saying, "This is not a single case of unfairness experienced by an individual gay man, but an illustrative example that shows the current state of human rights of gays in the military which are largely hidden”.
Supreme Court of Korea decision 2008Do222, 5/29/2008
22nd Infantry Division General Military Court decision regarding request for adjudication of constitutionality of case 2008Go10, 8/6/2008
Consitutional Court of Korea decision 2012Hun-Ba258, 7/28/2016
Constitutional Court shuts ears to UN, claims ‘Leaving alone sexual activities between members of the same sex in the military will weaken combat strength’, The Hanykoreh, 8/1/2016
“‘Abolish the crime of disgraceful conduct in the military’ … ‘Legislative petition for protection of LGBTI rights’”, Newsis, 1/17/2017
“Article 92-6 of the Military Criminal Act”, The Hankyoreh, 5/1/2016
“LGBTI rights violation in the 37th Infantry Division shows current state of LGBTI rights”, OhmyNews, 4/28/2016