A. Background of the Case
In this case, the Constitutional Court held that the part relating to “other indecent conduct” in Article 92-5 of the Military Criminal Act (hereinafter referred to as the “Instant Provision”), which prescribes criminal punishment for other indecent conduct that falls short of sodomy, does not violate the Constitution.
Article 92 of the Military Criminal Act, which was enacted in 1962, stipulated punishment by imprisonment with prison labor for not more than one year for other disgraceful conduct, and the Constitutional Court decided on two occasions that this provision was not against the Constitution [2001Hun-Ba70, June 27, 2002 (opinion of unconstitutionality by two justices); 2008Hun-Ka21, March 31, 2011 (opinion of unconstitutionality by three justices and opinion of conditional unconstitutionality by one justice). The aforementioned provision was amended and transferred to Article 92-5 of the Military Criminal Act in 2009, which prescribes punishment by imprisonment with prison labor for not more than two years for “sodomy or other indecent conduct.”
The complainant was prosecuted on charges of committing indecent conduct on a lower-ranking subordinate in the army barracks of his regiment and other places. In response, the complainant filed a constitutional complaint.
While this case was pending, the National Assembly, on April 5, 2013, amended the Military Criminal Act by Act No. 11734, moving the Instant Provision to Article 92-6 and revising the acts subject to punishment to “anal intercourse or other indecent acts.”
B. Summary of the Decision
The Constitutional Court decided that the Instant Provision does not violate the Constitution, for the following reasons.
The term “other indecent conduct” means indecent conduct that falls short of molestation and quasi-molestation by force; an act of sexual gratification between soldiers of the same sex that falls short of sodomy; and an act which from an objective point of view, causes a sense of aversion in the general public and runs contrary to virtuous sexual moral ideals. Considering such interpretation, the Instant Provision does not violate the rule of clarity of the principle of nulla poena sine lege.
The punishment of other indecent conduct has aims to establish sound conduct and military discipline of the army as a community. Given the security conditions and the conscription system of the Republic of Korea, it is impracticable to effectively regulate acts of indecent conduct between same-sex soldiers through administrative restrictions only. Therefore, such punishment does not infringe upon the soldier’s right to sexual self-determination, secrecy and freedom of privacy, and physical freedom.
Even if soldiers of the same sex are discriminated against in comparison to soldiers of the opposite sex by the Instant Provision, we recognize this restriction is imposed to preserve the distinctiveness and combat power of the army and thus constitutes a reasonable cause.
Justices Kim Yi-Su, Lee Jin-Sung, Kang Il-Won, and Cho Yong-Ho expressed an opinion of unconstitutionality for the Instant Provision as follows.
The Instant Provision deprives norm addressees of predictability, and creates the possibility of arbitrary legal interpretation by law enforcement agencies, by using only the vague and comprehensive terms of “sodomy or other indecent conduct” for the elements of the crime, and provides no indication of the necessity of compulsion, or detailed criteria on the degree, object, time, place, etc. of the act. Therefore, the Instant Provision violates the Constitution.
C. Aftermath of the Case
Some opinions were in favor of the Constitutional Court with regard to its three decisions of constitutionality of the Instant Provision (Chung Yeon-Ju, Constitutional Issues relating to the Crime of Indecent Conduct in the Military Criminal Act). However, many others criticized the Court’s decision of constitutionality, pointing out the possibility of unconstitutionality of Article 95-2 of the Military Criminal Act (Cho Kuk, Criticism on the Crime of ‘Sodomy or other Indecent Conduct’ in Article 92-5 of the Military Criminal Act; Lim Chae-Sung, An Analysis of Critical Discourses on ‘National Security’-Related Constitutional Decisions by the Constitutional Court Confined in Militarism; Kim Myung-Su, A Review of Legal Discrimination against Sexual Minorities; Park Chan-Geol, Problems with the Crime of Indecent Conduct in the Military Criminal Act and Improvement Measures; and Roh Ki-Ho, An Examination of Unconstitutionality of the ‘Crime of Indecent Conduct’ in Article 92 of the Military Criminal Act). Moreover, Amnesty International denounced the Court’s decision, arguing that no one should be discriminated against based on sexual orientation or gender identity (The Newsis, July 28, 2016).
After this decision was delivered, a conviction against a homosexual officer caused social controversy, and a motion to request a constitutional review of Article 92-6 of the Military Criminal Act was filed. In addition, a bill proposing to delete Article 92-6 of the Military Criminal Act was submitted to the National Assembly.