South Korea’s Supreme Court has overturned a military court ruling convicting two gay soldiers of having sex outside their military facilities, saying it stretched the interpretation of the country’s much-criticized military bestiality law.
The court’s decision Thursday to refer the case back to the Armed Forces Supreme Court was welcomed by human rights defenders who had long protested Article 92-6 of the country’s Military Penal Code of 1962, which bans same-sex behavior among soldiers in the country’s predominantly male military.
The article prescribes a maximum sentence of two years for “anal intercourse” and “other indecent acts” between military personnel. After the Supreme Court’s full deliberation on its 13 judges, Chief Justice Kim Myeong-su said they had concluded that the provisions should not apply to consensual sex between male military personnel that occurs outside of military installations during off-duty hours.
“The specific conceptions of what counts as indecency have changed accordingly as time and society have changed,” Kim said in a decision broadcast online.
“The view that sexual activity between people of the same sex is a source of sexual humiliation and disgust for objective normal people and violates decent moral feeling can hardly be accepted as a universal and appropriate moral standard for our time.”
The court later said in a press release that the decision was significant as a “declaration that consensual same-sex sexual activity (among military service personnel) could no longer be considered a criminal offense in itself.”
The two defendants – an army lieutenant and a non-commissioned officer from different units – were charged by military prosecutors in 2017 for having off-duty sex in 2016 in an apartment building outside of their bases. They were among at least nine soldiers charged with what critics describe as an army crackdown on gay soldiers in 2017.
The defendants appealed after the Supreme Military Court upheld their convictions by a lower court under Article 92-6 and sentenced them to suspended sentences.
South Korea’s defense ministry said it would “carefully review” the Supreme Court’s decision as it proceeds with the case, which is being referred back to the military court.
The Seoul-based Center for Military Human Rights welcomed the decision, saying it set a new precedent that could help tackle discrimination against sexual minorities in the military and strengthen protections for their privacy.
The group issued a statement calling on the courts to acquit all military personnel charged with violating Article 92-6 and on the country’s Constitutional Court to declare the provision unconstitutional.
The South Korean military has long been criticized for the way it treats sexual minorities among its military personnel.
The district court in the city of Daejeon ruled in October last year that the army unlawfully discriminated against the country’s first known transgender soldier, Byun Hui-su, by dismissing her for undergoing sex reassignment surgery, in a ruling released seven months after her death at her home.