By Kim Jae-heun
A lower court in Seoul made a not-guilty ruling Thursday on behalf of a former soldier charged for sexual contact with another male colleague, the first such ruling on gay sex.
The Seoul Northern District Court judged a reserve lieutenant innocent. The soldier had been indicted by army prosecutors for engaging in sexual activity with another serviceman, saying it took place under mutual consent.
Military law stipulates homosexual activity can be punished despite consensus, upon which the military prosecution indicted the lieutenant last June.
According to the prosecution, the former officer had consensual sexual relations six times with another lieutenant from a different unit from September 2016 to February next year.
Under military law, those found guilty can be subject to up to two years of imprisonment.
However, the civilian court said the military criminal law banning and punishing any type of consensual sex is an infringement of individual privacy and freedom as well as a soldier's self-determination.
Furthermore, the court added the sexual relationship was mutual and it saw no violation of what the army argues is an act against "healthy life and military discipline." The court particularly pointed out such an act that has been conducted privately has no danger of directly damaging military discipline or compromising fighting power.
"It is appropriate to interpret that the article of military criminal law only applies when one soldier abuses his power to force anal sex or any kind of molestation on another soldier," the court judged.
The Center for Military Human Rights Korea welcomed the court's ruling, saying it is the first time in 70 years that a defendant charged with consensual homosexual activity received a verdict of not guilty. The military law punishing homosexual activity between soldiers was enacted in 1948.
The lieutenant's case came to light during a military crackdown on gay soldiers last April. The controversial investigation accused 22 soldiers of homosexuality and investigated them.
The lieutenant was discharged from the military during the prosecution's investigation and has been on trial in a civilian court. In total, the military court found seven soldiers guilty of homosexual activity last year as a result of the investigation.
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