October 27, 2023
SEOUL – South Korea’s Constitutional Court on Thursday upheld the military criminal code that punishes same-sex sexual activities between soldiers, even if it took place outside of military property and was consensual, saying that the military needs to maintain discipline and combat power.
In a 5-4 decision, the highest court upheld the constitutionality of Article 92-6 of the Military Criminal Act, which stipulates that “anal sex and other indecent acts” between military personnel can be punished by up to two years in prison.
The nine-member court unanimously rejected the plaintiffs’ request for trial.
“Even if it was consensual sex, if it occurs in the workplace or during the duty of performance, it poses a serious risk to the preservation of the army’s military capabilities and the sacred duty of national security and defense,” the court said.
“If sexual relations between same-sex soldiers are left unaddressed, the strict command hierarchy or structure within the military could be put at risk,” the court added.
Currently, the military criminal code, revised in 1962, prohibits same-sex sexual activities among military personnel, which are mostly composed of males.
Despite repeated attempts by LGBT communities and intersex people to abolish the law, the Constitutional Court ruled the clause to be constitutional in 2002, 2011 and 2016.