판례평석: 군형법 제92조의6 추행죄의 적용범위 - 헌재 2023. 10. 26. 2017헌가16등 -

Abstract

The amended Military Criminal Act in 2013 introduced Article 92-6, specifying that military person, engaging in anal intercourse or other forms of molestation, would be subject to imprisonment for up to 2 years. Prior to the amendment, Article 92-5 of the military law stated that individuals engaging in sodomy or other forms of molestation would be subject to imprisonment for up to 2 years. In other words, the term ‘sodomy’ was replaced with ‘anal intercourse.’ The Supreme Court en banc Decision of April 21, 2022, 2019do3047 stated that the provisions of the 2013 amended Military Criminal Act regarding molestation crimes protect not only military discipline but also the sexual autonomy of military personnel as a legal interest. Therefore, acts of molestation based on the agreement between the parties in private places outside the scope of the infringement of individual sexual freedom are not included in the application of these regulations. Based on this Supreme Court en banc decision, the Constitutional Court confirmed again its constitutionality of the amended Military Criminal Act regarding molestation crimes(Constitutional Court Decision, October 26, 2023, 2017Hun-Ga헌가16etc.). The Constitutional Court in this decision stated that the mentioned provisions apply exclusively to sexual acts between members of the same sex, ensuring conformity with t he p r inciple of c lar ity. T he C our t also c lar ified that t he p r ovisions w ould a pply in cases where sexual misconduct occurs outside private spaces, infringing upon the wholesome living of the military community and military discipline, even if there is no coercion or voluntary agreement, or if voluntary agreement occurs outside private spaces. However, criticism of the Constitutional Court’s decision can be raised on the following grounds: Firstly, it remains unclear whether the mentioned provisions apply to sexual acts between heterosexual individuals or between female military personnel. Secondly, while the Supreme Court stated that sexual acts in private places outside the military scope are not covered by the molestation crime, the interpretation of private spaces, including unmarried individuals’ accommodations within military facilities, remains unclear. Thirdly, the amendment to the military law changed the term ‘sodomy’ to ‘anal intercourse,’ without altering the substance of the provision. Nevertheless, the Supreme Court, departing from previous decisions, asserted that the molestation crime protects not only military discipline but also the sexual autonomy of military personnel. Fourthly, the Constitutional Court’s assertion that the molestation crime in Military Criminal Act applies to acts of coercion in cases where it is difficult to recognize a hierarchical relationship, such as in instances of coercion outside the scope of official duties, raises criticism. This leaves room for debate on how to distinguish it from crimes of coercion under the Special Act on Sexual Violence and may suggest the possibility of discretionary prosecution by prosecutors.