“In the military, there is a markedly high potential for abnormal acts of sexual intercourse to take place between members of the same sex and a strong likelihood for superiors to attempt homosexual acts with subordinates,” wrote justices Park Han-chul, Lee Jung-mi, Kim Chang-jong, Ahn Chang-ho, and Seo Ki-seong in the majority opinion. “If left alone, this presents a serious risk of direct harm to the preservation of fighting strength.” Their reason was that the special characteristics of the military as an organization justified discriminatory treatment compared to soldiers engaged in heterosexual acts.The decision is not yet on the court's website.
The dissent was written by justices Kim Yi-su, Lee Jin-sung, Kang Il-won, and Cho Yong-ho. In it, they argued that because consensual sexual acts could not be seen as having a direct bearing on the preservation of military fighting strength, and should therefore be excluded from criminal punishment as a rule.
Noting the lack of clarity in the provision under review, the justices added, “This leads to an unreasonable situation in which consensual sexual acts with no forcible element are subject to the same punishment according to the same criminal provisions as the most forcible of acts, namely ’molestation by force or intimidation.‘”
They went on to criticize the majority decision in favor of the provision’s constitutionality by noting that it was “makes it utterly impossible to determine whether punishment applies only to indecent acts between males, whether indecent acts between females or with members of the opposite sex will also be punished, or if it also includes punishment for molestations of members of the general public by soldiers.”
Attorney Han Ga-ram from the group Korean Lawyers for Public Interest and Human Rights, who represented the side challenging the provision‘s constitutionality, said, “The question of whether punishments of homosexual acts violate the Constitution is an essential matter, yet the court’s majority decision made no judgment at all on that.”
The ruling suggests more time will be needed before the military‘s punishments of homosexuality are abolished.