Two South Korean gay soldiers were held guilty under the country’s military sodomy law for having consensual sex during off duty hours while they were off their military base. The country’s Supreme court, in a landmark decision last week, overturned the convictions.

The court said that the conviction by a military tribunal stretched the reading of the controversial anti-sodomy law that is applicable to military personnel, reported The New York Times. Under South Korea’s Military Criminal Act, “anal intercourse or other indecent acts” is punishable with up to two years in prison.

The law has been controversial and has been invoked irrespective of the fact that the sex act was consensual or it occurred outside the base. The constitutional validity of the law has been upheld by the court three times previously and a fourth challenge is pending before the Supreme Court.

Gay Soldiers Charged After They Were Found To Have Had Sex

The case of the two gay soldiers is the first time that a South Korean court has disagreed with the application of the law. In 2016, the couple, a first lieutenant and a master sergeant, were charged after they were found to have had sex in a private house outside their military bases. 

The military court sentenced the first lieutenant to four months in prison and the master sergeant to three months – both sentences were suspended.

The Supreme Court said that the law could not have been applied in the case as the consensual sex act did not occur at a militart facility. 

“The view that sexual activity between people of the same sex is a source of sexual humiliation and disgust for objective regular people and goes against decent moral sense can hardly be accepted as a universal and proper moral standard for our times,” the Supreme Court ruled. 

More Than 20 Soldiers Charged Under Sodomy Law

In a press release, the court said that the decision was important as a “declaration that consensual same-sex sexual activity (among military service members) could no longer be considered as punishable in itself.” The Supreme Court has sent the case of the gay soldiers back to the military court. 

According to Amnesty International, South Korea has in the recent past charged more than 20 gay soldiers under the military sodomy law for engaging in consensual sex.  Amnesty International’s East Asia Researcher Boram Jang said that the court’s decision was “groundbreaking”.

“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 prosecution,” said Jang, adding, “The South Korean government must now swiftly repeal Article 92-6 of the military code as the next step towards ending the pervasive stigmatization faced by LGBTI people in the country.”

Homosexuality is legal in South Korea, but there are no laws to protect LGBTQI people from discrimination or hate crimes. South Korea does not recognise same-sex marriages and in January 2022 a court dismissed a petition filed by a gay couple for their relationship to be recognised.


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