In a landmark ruling, South Korea’s Supreme Court overturned the convictions of two male soldiers for having consensual sex while off their military base.
On Thursday, the court determined that a 2019 ruling, which sentenced the two male soldiers to suspended prison sentences, was unconstitutional in a ruling that could set a new legal precedent. The decision cited the right to “sexual autonomy” and “human dignity,” as well as “to pursue happiness.” According to Article 92-6 in South Korea’s Military Criminal Act, enlisted servicemen who partake in “anal intercourse or other indecent acts” are punishable for up to two years in prison.
While same-sex relationships are not illegal, engaging in homosexual activity while serving in the military is considered a crime.
The courts had previously upheld the military code, claiming it necessary to maintain order in the army and also arguing that sex between soldiers could spread AIDS and compromise their readiness to fight.
This ruling marks the first time that the South Korean Supreme Court has ruled in favor of LGBTQ rights for soldiers convicted of violating the Military Criminal Act.
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Amnesty International East Asia researcher Boram Jang told the New York Times, “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 persecution.” In 2017, a South Korean army captain, along with at least 32 other servicemen, were charged for involvement in homosexual activities, with the captain sentenced to six months in prison.
At least 620,000 Korean men serve at any given time, ready to fight in the case that North Korea invades. While at a cease-fire, the two are technically still at war and have been for the past 72 years.
All South Korean men, except for those with underlying medical conditions that exempt them from service, are required to enlist in the army for a little less than two years.
South Korea remains slow to develop LGBTQ friendly policies, oftentimes favoring the dominant conservative Christian groups that oppose gay rights.
Last year, a transgender woman died by suicide after being expelled from the army and deemed unfit to serve after her gender-reassignment surgery. Byeon Hee-su, 23, petitioned to be allowed to fulfill her conscription, explaining she wanted to “show everyone” that she could still protect the country. Her case sparked debate about the treatment of LGBTQ soldiers in the military. Even liberal President Moon Jae-in, a former human rights lawyer, has voiced an anti-LGBTQ stance. During his 2017 campaign, one of his opponents argued that gay soldiers were weakening the Korean army. In response, Moon said that he opposed homosexuality.
Topics of sexual identity and LGBTQ rights continue to remain largely absent from both political and cultural conversations in South Korea.