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In 2016, two South Korean male servicemen were sentenced to prison by a military court for committing voluntary sex outside the base. On April 21, South Korea's Supreme Court overturned their guilty verdict, ending the South Korean military's decades-long ban on same-sex sex, marking a major milestone in affirmative action for the South Korean military's sexual minorities.
Article 92,6 of South Korea's Military Penal Code imposes a maximum sentence of two years' imprisonment for "anal sex or other indecent acts," whether voluntarily or not, and whether committed inside or outside the military. The two defendants in the case, who served as lieutenants and sergeants in the military respectively, had sexual relations outside working hours and in private homes in 2016 and were charged with violating military law. The lower military court sentenced the lieutenant to 4 months' imprisonment and the sergeant to 3 months' imprisonment with a suspended sentence.
In its ruling on the 21st, the Supreme Court of South Korea ruled that article 92-6 of the military law should not apply to voluntary acts outside the military environment. The court said in a press release that the significance of the decision was to "declare that consensual same-sex sexual acts (between military personnel) are inherently impuntable."
Supreme Court President Kim Myung-so said: "Same-sex sex is a source of sexual humiliation and disgust for the objectively existing ordinary people, contrary to a decent sense of morality, and this view is difficult to accept as a universal and appropriate moral standard of our time."
In South Korea, the acceptance of homosexuals and other sexual minorities in society as a whole is low, and the South Korean government has long been criticized at home and abroad for its protection of sexual minorities is far from enough, and there has been no legislation on equal rights for sexual minorities, but discriminatory policies and treatment are even worse in the South Korean military.
In June 2019, anti-gay marriage activists attended a rally in front of Seoul City Hall in South Korea, where the 2019 Korean Gay Culture Festival was being held.
The South Korean army, which is more representative of patriarchy and emphasizes "real men", has broken out a number of gender bullying scandals in the past. In 2017, south Korean military was accused of conducting a "gay purge campaign," in which dozens of gay soldiers were arrested, at least nine were prosecuted, and many others were "tracked and monitored." The two accused in the case were also among the soldiers arrested five years ago for same-sex relationships.
Homosexuality is regarded as a mental illness
The South Korean military does not prohibit gay or transgender people from serving, and All able-bodied men between the ages of 18 and 35 are required to perform military service for a minimum of 21 months, and sexual orientation is not a reasonable reason for exemption from military service.
However, in 2020, Bian Xixiu, a 22-year-old transgender soldier, was judged a third-degree physical and mental disability by the military on the grounds of "sexual organ defects" and was subsequently forcibly removed from military service. Bian Xixiu himself said that although he knows that the military has not yet been able to accept transgender soldiers, he is willing to work hard to promote the military to make more progress in human rights and face up to the issue of gender identity. However, she was ultimately overwhelmed and committed suicide at home early last year.
In addition, testimony from human rights groups and many retired officers and soldiers shows that Gay Soldiers in South Korea are subjected to physical and sexual abuse in the military. In its report, Amnesty International documented a retired soldier who was forced to perform oral and anal sex with another gay soldier in the military and was verbally insulted by his superiors. Another veteran, who had been sexually harassed by other soldiers in the army, was sent to a psychiatric hospital as a patient and forced to take antidepressants. He attempted suicide twice during his hospitalization and was eventually expelled from the army.
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Can't help but serve secretly allow bullying
Although the military has stated that it will not discriminate against homosexuals, insisting that it only prohibits "obscene" sexual acts that violate military discipline, under this policy, the culture of discrimination and bullying against homosexuals in the military has in fact been justified, and most gay soldiers will hide their sexual orientation in order to avoid bullying.
The South Korean NGO Center for Military Human Rights (MHRCK) disclosed that the 2017 military's purge of Section 92-6 was "to carry out a clean-up and search of gay and lesbian soldiers in the Army at the direction of Army Chief of the General Staff Jang Jun-gyu"; the report stated that in addition to "coercing confessions" from homosexuals in the military, threatening to confess "accomplices", and conducting induced questions about the details of their private lives, investigators from the Army Central Search Corps also used gay dating apps to conduct "fishing enforcement". Monitor the whereabouts of these soldiers on software.
The search group then handed over more than 20 people to the military procuratorate. Between 2017 and 2021, several gay soldiers were sentenced by military tribunals under section 92-6; in one case in 2021, two soldiers were convicted by the court as "close to rape" for mutually agreed oral sex and sentenced to six months of probation.
Military criminal law is entrenched in stereotypes
In fact, South Korea's military penal code is almost entirely drawn from Western countries, especially the United States. But as the United States and other countries have refined and eliminated discriminatory provisions against the gay community, South Korea's military law has not kept pace.
The Constitutional Court of South Korea also reviewed the constitutionality of the provision three times in 2002, 2011 and 2016, but on all three occasions it retained it with a majority. In a 2016 court majority opinion, the five judges wrote: "In the military, there is a clearly high probability of abnormal sexual intercourse between members of the same sex, and there is a high probability that a superior will attempt to have homosexual acts with a subordinate." If left unchecked, there is a serious risk to maintaining combat effectiveness and (allowing combat effectiveness) to be free from direct harm."
South Korea, a party to the International Covenant on Civil and Political Rights, has repeatedly faced UN scrutiny, but the government has defended the military in its report: "In a military-specific environment where only men coexist, this law is a necessary condition for the maintenance of order." The punishment of gay soldiers is also for this purpose."
In the United States, however, courts in 2014 amended the Code of Military Justice to punish sexual intercourse between soldiers only for forced, unsolicited sexual intercourse, while South Korea's Constitutional Court has retained the antiquated law. In addition to forcing all men to serve, the culture of bullying homosexuals and sexual minority soldiers was implicitly sanctioned in the name of "maintaining combat effectiveness".
Although this judgment makes the same-sex sexual behavior of military personnel legally guaranteed, it is difficult to change the Chinese of the military for a while, and the problem of bullying may not be eliminated.