Among current legislation in Korea, there is a law that punishes citizens on a basis of their sexual orientation. The Korean Military has tracked down and punished LGBTQ+ soldiers based on the law. We will explain why this law is a problem and introduce court rulings associated with it in 2022.
English Translation: 피웊
Translation review: 동치, Miguel
Writer of the original text: Miguel
Review and amendments to the original text: 레이
In Korea, military-related issues such as military conflicts with North Korea and the mandatory military service system are treated as daily and yet important news. We will briefly address the violation of LGBTQ+ rights inside the military based on Article 92-6 of the Military Criminal Act, which is also referred to as the 'Sodomy Law.'
Inside Article 92-6
The Military Criminal Act is a legal device to punish the wrongdoings of soldiers. The law also applies to civilian workers in the military. Among them, Article 92-6 stipulates that “A person who has committed the act of anal intercourse or other harassment shall be punished by imprisonment for up to 2 years.”
The law originally used the term “gye-gan,” an outdated and derogatory expression of sex between men, but the word was changed to “anal intercourse” in 2013.
I see no problem here. Shouldn't all harassment be punished?
In the original Korean text of Article 92-6, harassment is written as “chuhaeng.” The word does not mean sexual violence in the context. “Chuhaeng” means “dirty and filthy behavior” but in the context, similar to “gyegan,” it refers to a sexual act between men. The article is based on the prejudice that homosexual sex is subject to punishment.
Harassments and sexual violence that we generally know as acts of sexual self-determination infringement under coercion are covered by Article 92-3 of the Military Criminal Act and other articles in military law. In addition, through several rulings on Article 92-6, the Military Court stated that the purpose of this provision is to “protect the healthy life and military discipline of the military.” Since the purpose of the article is not to protect soldier's right to sexual self-determination, the military has punished the intercourse between two male soldiers under an agreement that happened outside the military unit.
Has Article 92-6 ever been enforced?
The most well-known case of enforcement of the law is the crackdown on LGBTQ+ soldiers in 2017. Jang Jun-kyu, who served as Chief of Staff of the Republic of Korea Army at the time, ordered to search for “homosexual soldiers” and punish them under Article 92-6, with dozens of soldiers subject to an investigation based on individual sexual orientation without any clear physical evidence. On May 24th, the General Military Court sentenced a soldier to 6 months in prison and a year of probation, taking issue with sexual intercourse agreed upon outside the camp. After that, many more became victims of court rulings.
According to the Army, the investigation was expanded around a soldier who distributed pornography, but civic groups, including the Center for Military Human Rights Korea (CMHRK), said the victims were not guilty of the charges argued by the Army. The Army searched for homosexual soldiers by questioning the identities of other gay soldiers to the suspect. The Army also investigated through dating apps, accompanied by warrantless cell phone forensics, insulting remarks, and threats to outings. This case shows that Article 92-6 is more than a simple legal provision and can be used as a device to systemically suppress LGBTQ+ soldiers.
There are many other cases, including the 2019 Navy LGBTQ+ crackdown, but we will not cover them further in the article.
This case shows that Article 92-6 is more than a simple legal provision and can be used as a device to systemically suppress LGBTQ+ soldiers.
Article 92-6 still can be a legitimate device to punish sexual violence and sexual intercourse in a compound, isn't it?
In 2008, an officer was charged with beating a soldier's genitals, grabbing his nipples and twisting them in front of other soldiers, but was acquitted by the Supreme Court. While Article 92-6 of the Military Criminal Act punishes “homosexual sexual practices and other abnormal sexual satisfaction acts that objectively cause disgust and go against sexual morality,” the Supreme Court saw that the defendant's actions had nothing to do with this. This ruling sparked a campaign to abolish Article 92-6.
In 2010, a male soldier and a female soldier who were sent to Lebanon were suspended and received a salary reduction for sexual intercourse in military units. However, Article 92-6 of the Military Criminal Act was not applied, and the level of punishment was lower than that of Article 92-6, stipulating imprisonment. If the purpose of Article 92-6 were to "protect the healthy life and military discipline of the military," as the military court said, there would have been no reason to ruled different degrees of punishment between heterosexual and homosexual sexual practice among soldiers.
The two cases introduced above are in contrast to the application of Article 92-6 in the suppresion for LGBTQ+ soldiers in 2017. Article 92-6 is used as a tool to discriminate against minority groups based on social prejudice rather than for the purpose of punishing harassment or establishing discipline for sexual violence in the compound.
Wave of change in 2022
Civil society has made steady movements. With the aforementioned Supreme Court ruling in 2008, the movement to abolish Article 92-6 began in earnest, and there was a persistent movement to abolish it through the Constitutional Court. Although the Constitutional Court judged that Article 92-6 was constitutional three times (2002, 2011, and 2016), political circles also proposed legislation to abolish the provisions in 2014 (Jin Sunmee of the Democratic Party) and 2017 (Kim Jong-dae of the Justice Party).
Shortly after the crackdown on LGBTQ+ soldiers in 2017, LGBT groups and civil society filed a petition with the Defense Ministry and held four denunciation rallies in front of the Defense Ministry building. Universities across the country posted slogans saying, “Arrest me as well.” LGBTQ+ groups and human rights groups have since continued to appeal against the court rulings along with the victims and continued their bitter litigation.
And finally, on April 21, 2022, the Supreme Court overturned the conviction of the High Military Court in the case of a victim. The Supreme Court found it difficult to punish same-sex relations under voluntary agreement in private space under Article 92-6. Moreover, the Supreme Court also hinted at the need to revise the law in accordance with the change of the times, saying, “Homosexuality is accepted as one of the natural sexual orientations at home and abroad today.” Since the decision, positive rulings have been made one after another, with the prosecution seeking innocence from the defendant in a case or acquittal in another court. In addition, Jang Hyeyeong (Justice Party) once again proposed the abolition of Article 92-6 of the Military Criminal Act.
There's still a long way ahead. Other victims are still waiting for the court's ruling, and the Constitutional Court is re-pending the unconstitutional law trial on Article 92-6. As it is the only provision in Korea that punishes sexual and gender minorities, we need to keep a close eye on the court and the National Assembly's decision in the future.
English Translation: 피웊
Translation review: 동치, Miguel
Writer of the original text: Miguel
Review and amendments to the original text: 레이
References (available in Korean)
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