South Korea's supreme court threw out a military court ruling that convicted two gay soldiers for having sex outside military facilities, saying it stretched the reading of the country's widely criticised military sodomy law.
Human rights advocates, who had long protested the country's 1962 military criminal act s article 92 - 6, which prohibits same-sex conduct among soldiers in the country's predominantly male military, welcomed the decision on Thursday to send the case back to the high court for armed forces.
The article prescribes a maximum prison term of two years for anal intercourse and other indecent acts between military personnel. After the full panel deliberation of its 13 justices, chief justice Kim Myeong-su said they concluded that the provisions should not be applied to consensual sex between male service members that take place outside military facilities during off-duty hours.
Kim said that the specific ideas of what constitutes indecency have changed with the changes in time and society.
The belief that sexual activity between people of the same sex is a source of sexual humiliation and disgust for objective regular people and goes against the moral sense can hardly be accepted as a universal and proper moral standard for our times. In a press release, the court said that the decision was meaningful as a declaration that consensual same-sex sexual activity among military service members could no longer be considered as punishable in itself. Two defendants, an army lieutenant and sergeant from different units, were charged in 2017 for having sex during off-duty hours at a residence outside their bases. They were among nine soldiers indicted in what critics described as the army s aggressive crackdown on gay soldiers in 2017.
The defendants had appealed to the military high court after the court upheld their convictions by a lower court based on article 92 -- 6 and gave them suspended prison terms.
South Korea's defence ministry said it will carefully examine the decision of the supreme court while proceeding with the case sent back to the military court.
The Center for Military Human Rights welcomed the decision, saying it set a new judicial precedent that could help tackle discrimination against sexual minorities in the military and strengthen protection of their privacy.
The statement called for the courts to acquit all service members charged with violating article 92 -- 6 and for the country's constitutional court to rule the provision unconstitutional.
South Korea's military has been criticised for its treatment of sexual minorities among its service members.
In October of last year, the district court in Daejeon city ruled that the army unlawfully discriminated against the country's first known transgender soldier, Byun Hui-su, by discharging her for gender reassignment surgery, in a verdict that came seven months after she was found dead at her home.