2008 Hun-Ga21 (Military Penal Code Article 92), Constitutional Court of South Korea (31 March 2011)
A platoon sergeant was indicted under Article 92 of the Military Penal Code on the grounds that he had had a sexual relationship with another service member. The military court recommended that the constitutionality of Article 92 be reviewed by the Constitutional Court. Proceedings were suspended until resolution of the constitutional question. The National Human Rights Commission submitted a brief to the Constitutional Court which concluded that Article 92 was unconstitutional because it violated the rights to sexual self-determination, privacy, and equality of service members. The Ministry of Defence defended Article 92 on the grounds that it was necessary to maintain military cohesion and morale.
Whether Article 92 was unconstitutionally vague or violated the defendant’s rights to privacy and equal protection of the laws.
Constitution of South Korea, Article 11(1) (“All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status”), Article 17 (“The privacy of no citizen shall be infringed”), and Article 37(2) (“The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order, or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated”).
Military Penal Code, Article 92 (providing that service members who engage in anal sex between men (“gye-gan”) or other forms of indecent sexual acts are subjected to up to one year of imprisonment).
Reasoning of the Court
The Constitutional Court first addressed the issue of whether the law was unconstitutionally vague. It found that the law did not violate the principle of nulla poena sine lege because an individual “with common sense and ordinary sensibilities” could easily predict what conduct would be prohibited under the law. In reaching this conclusion, the Court stated that an ordinary citizen would objectively regard homosexual sexual acts with antipathy.
Next the Court considered whether Article 37(2) had been infringed. It considered that the asserted objective of the law – preservation of sound living conditions and morale within the community of the armed forces – was legitimate. It found that prohibiting sex between same-sex soldiers was a proportional means of attaining this end. In its proportionality analysis, the Court found that the importance of preserving sound living conditions and morale within the armed forces community and the public interest of national security outweighed the right to sexual self-determination or right to privacy of individual service members.
Regarding equality, the Court held that treating sex between same-sex partners differently from sex between opposite-sex partners did not amount to discrimination on the basis of sex and was therefore not prohibited by the Constitution.
The Constitutional Court upheld Article 92 by a vote of 5 to 4. The four dissenting justices argued that the law was unconstitutionally vague because it did not distinguish between coerced and consensual sexual activity.
2008 Hun-Ga21 (Military Penal Code Article 92), Constitutional Court of South Korea – Korean (full text of judgment in Korean, PDF)