South Korea: Landmark judgement on same-sex sexual acts in military a huge victory for LGBTI rights

Responding to the Supreme Court of Korea reversing the convictions of two soldiers jailed in 2017 for engaging in consensual same-sex sexual acts while off duty, Amnesty International’s East Asia Researcher Boram Jang said: 

“This groundbreaking decision is an important triumph in the fight against discrimination faced by LGBTI people in South Korea.

“The criminalization of consensual same-sex sexual acts in South Korea’s military has long been a shocking violation of human rights, but today’s ruling should pave the way for military personnel to freely live their lives without the threat of prosecution.

“The South Korean government must now 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.”  

Background 

In a momentous en banc decision, the Supreme Court of Korea today reversed the lower court’s convictions of two soldiers under Article 92-6 of the country’s Military Criminal Act, which punishes consensual sexual acts between men in the military with up to two years imprisonment under an “indecent acts” clause.  

The two soldiers were sentenced respectively to three months and four months (plus one year probation) in prison in 2017, when military authorities pursued an investigation to identify and punish soldiers suspected of having sex with men. More than 20 soldiers were charged under Article 92-6 of the Military Criminal Act for allegedly engaging in consensual same-sex sexual acts as a result.  

The Court reasoned that if same-sex sexual acts took place off base, while the soldiers were off duty and by mutual consent, the Act does not apply. It further reasoned that criminalization of these acts would unreasonably violate soldiers’ right to sexual autonomy and deny their rights to non-discrimination, equality and dignity, as well as their right to pursue happiness guaranteed in the Constitution. 

Today’s decision also reversed the Supreme Court’s own precedents which confirmed convictions of consensual sexual acts between men without examining whether the acts took place on or off duty and whether the acts were mutually consented. 

South Korea’s Constitutional Court is currently considering, for a fourth time, whether the criminalization of consensual same-sex sexual activity by military personnel is constitutional, having ruled three times since 2002 that it is. 

The Amnesty International report Serving in Silence: LGBTI People in South Korea’s Military revealed the destructive impact on LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) people caused by the criminalization of consensual same-sex activity in South Korea’s military.