군형법 제92조의5 계간 그 밖의 추행죄 비판 - 군인간 합의동성애 형사처벌의 당부 -

Abstract

"Sodomy or any other sexual molestation between military service members" is criminalized by the Korean Military Penal Code, while homosexual activities between civilians are de-criminalized. The Article 92-5 of the Code has applied to consensual homosexual activities as well as non-consensual. The Supreme Court has not made it clear whether or not the Article applies to heterosexual sodomy, while it held the Article does not apply to the sodomy between a military service member and a civilian. While the National Commission of Human Rights recommended several times that the Article is discriminatory and should be revised, the Constitutional Court in 2002 and 2011 upheld it is constitutional. First, this essay begins with reviewing the Supreme Court's interpretation of the Article 92-5 and examining the two decisions of the Constitutional Court. The two Courts have maintained that the Article 92-5 is necessary to keep military discipline or capacity and the vague part of the Article may be clarified by the judicial interpretations. Second, this essay discusses the legal policy and judicial decisions of the major OECD countries regarding homosexual activities in the military. Then, this essay argues that the Article 92-5 is unconstitutional in that it violates the right of sexual self-determination and privacy of military service members under the name of national security or military discipline; it is too vague to specify the scope of punishable conducts, for instance, it is not clear whether or not homosexual activities out of the military is punishable; it is not "the less restrictive sanction"but over-criminalization for military discipline or capacity may be maintained by the use of administrative sanctions. Finally, this essay proposes to abolish the Article 92-5, use administrative sanctions against public homosexual activities in the military, and add a new provision to punish sexual molestation by deceit or force.