We are the Korean Gay Men’s Human Rights Group Chingusai, the oldest and only gay men’s rights activist group in South Korea. As the attached statement and newspaper article (http://www.koreaherald.com/national/Detail.jsp?newsMLId=20110331001070) show, the Constitutional Court of Korea (CCK) announced on 3/31/2011 that the former Article 92 in the South Korean Military Criminal Act, the only sodomy clause in the country’s law, was “constitutional.”
This is a great disappointment to everyone who has fought against the clause for years and a terrible disgrace to the nation’s legal system and society at large. Furthermore, it renders the situation even more dangerous for gay soldiers because, due to the continuing tension between North Korea and South Korea, military service is mandatory for all able-bodied men. We therefore write to ask for your support and help. Legislated in 1962, the original Article 92 of the Military Criminal Act indiscriminately punished all same-sex acts between soldiers, even mutually consensual ones performed in private: “Article 92 (Indecent Sexual Acts): A person committing sodomy or other acts of sexual harassment shall be punished by imprisonment for not more than one year.” Thus using the derogatory term “sodomy,” it denigrated homosexuality and punished same-sex acts between soldiers differently from and far more severely than different-sex acts, thus violating the principle of equal rights. Due to this article, even a pair of male soldiers who, based on mutual consent, had engaged in sexual acts at home while on leave was judged guilty and punished. For an example of the actual interpretation and application of the former Article 92, please see this decision on the article by the CCK from June 2002 at:
In August 2008, none other than a military court judged that the article lacked the legitimacy to inflict punishments, meted out disproportionately harsh ones, and, in violating soldiers’ freedom of privacy and right to sexual self-determination, was highly unconstitutional. Consequently, using its authority, this court requested the CCK for a legal judgment on the unconstitutionality of the article.
While the CCK’s sentence was yet pending, however, in November 2009, the Grand National Party (GNP), the ultraconservative ruling party, and the Ministry of National Defense (MND) led the revision of this article to “Article 92(5) (Indecent Sexual Acts). A person committing sodomy or other indecent sexual acts shall be punished by imprisonment for not more than two years,” thus doubling its maximum legal penalty, without any press or media coverage. Though this was done allegedly to prevent same-sex harassment and rape, the revised Military Criminal Act includes very belated articles punishing sexual violence without allusions to the sex of the victimizers and victims so that neither the former Article 92 nor the current Article 92(5) is necessary. In addition, while the revised Military Criminal Act prohibits investigations of and punishments for rape and sexual assaults without the victims’ accusations, it stipulates immediate investigations in cases of same-sex acts, even mutually consensual ones. Moreover, because the article does not even stipulate a financial penalty, same-sex acts between soldiers have become crimes with a high legal penalty, and, at present, military investigation authorities categorically detain and investigate the parties involved.
Though the National Human Rights Commission of Korea (NHRCK), the country’s national human rights institution, and diverse non-profit LGBT and human rights NGO’s have continuously urged the abolition of this de facto anti-gay law, the legislature and the government have thus revealed their will to punish homosexuality in the military even more harshly than before. Both the former and revised clauses unfairly brand all gay soldiers as perpetrators of “indecent sexual acts” and groundlessly equate homosexuality with sexual violence. In other words, a group of minorities who already suffer from discrimination are being hounded and cornered even more. Furthermore, the South Korean military uses a personality test, the Korean Military Personality Inventory (KMPI), to sort out homosexuals so that soldiers revealed to be gay are subjected to collective bullying, assaults, and sexual violence. Such incidences of human rights violations continue to be reported to the Network for Reporting the Violation of the Human Rights of Sexual Minorities in Relation to the Military (http://gunivan.net), which we and another LGBT rights NGO established in March 2008 to address this issue. With the revised Military Criminal Act, prejudice against and restrictions on homosexuals have been strengthened, and gay soldiers have suffered from mental, emotional, and physical difficulties including extreme fear of intimidation, anxiety, depression, and even suicide attempts.
With the increasing decriminalization of homosexuality including the long-awaited repeal of the “Don’t ask, don’t tell” (DADT) policy in the American military and the expanding sanction of marriage, domestic partnership, and civil union to same-sex couples across the globe, we are witnessing greater understanding of and openness to LGBT people. The CCK’s decision not only runs directly against such trends but is downright anachronistic, pushing history backward. We therefore issued a statement on 3/31 and held a joint press conference today (4/5) to denounce the judgment and will, of course, continue to fight to right the situation.
Please empower us by e-mailing your message of solidarity to us Chingusai at email@example.com. You can protest against the sodomy clause in the Military Criminal Act and the CCK’s homophobic decision by sending copies of your e-mail to the organs below as well:
Many thanks for your support!
Korean Gay Men’s Human Rights Group Chingusai
Address: 3/F Myodong Building,
183 Myo-dong, Jongno-gu, Seoul, Korea 110-370