By Bae Ji-sook
Staff reporter
Does homosexual intercourse based on mutual understanding constitute "harassment" and make those engaged in it subject to imprisonment? The current military authorities think so, but progressive civic groups and a military court do not.
At the Constitutional Court Thursday, tensions were high as the Ministry of National Defense and a local military court walked a tight rope on whether Article 92 of the Military Law subjecting those practicing homosexual intercourse to a year in prison violated the basic human right to seek happiness and live with equality.
Many gay activists, legal experts and other civil rights advocates attended the public hearing, while the judges asked one question after another to see whether they had missed any details.
"Harassment is a compulsive, one-sided action involving violence most of the time. However, for many of the prosecuted homosexuals, intercourse was based on mutual consent. Since there hasn't been prosecution for heterosexual intercourse, it is a clear discrimination against gay soldiers," said lawyer Jung Jung-hun, who represented the local military court that filed the petition with the Constitutional Court.
"Moreover, the military authorities have prosecuted homosexual activities outside the barracks - for instance, soldiers who met their boyfriends during holidays were punished, too. This is an excessive suppression of sexuality and a clear violation of privacy," he said.
Prof. Lee Ho-jung of Sogang University Law School, who was an expert witness, said the world is moving toward accepting gays as part of the military. "There are reports from Israel that homosexual soldiers' performances were equal to or often better than those of their heterosexual peers. They also got along with members in the camp," he said.
In the European Union, except for Greece, homosexuals' military service is accepted. In Australia and many other countries, they are allowed to openly serve in the military. The U.S. is also reportedly moving to allow openly-gay soldiers to serve in the military.
"Many other countries relocate soldiers who refuse to stay with gay peers. This is in consideration to those who oppose homosexuality and at the same time, not discriminating against same-sex lovers," he said.
Still, the military authorities stand firm on their "no" policy.
"I have no bad feelings toward homosexuals," said Prof. Jung Yeon-ju of Sungshin Women's University's law department, who was a witness for the defense ministry.
"But under very special circumstances, I think some human rights or freedom should be restricted. Hundreds of soldiers are excluded from the outside world and are staying in small rooms together. It could drive them to commit some impulsive action. Therefore, whether it is mutual or one-sided, whether it was done outside barracks or inside, homosexuality should be restricted while there," he said.
Currently, 53 countries prohibit gays from serving in the military, including China, Yemen and Iran. "Yes, there are some countries making efforts to accept gay members, but at the same time, many others oppose them. Especially given that Korea maintains a mandatory draft system, we should think about the majority in the big picture," Jung said.
The ministry's lawyers also suggested that allowing homosexuality could irritate many soldiers. They submitted a report to the judges suggesting that about 90 percent of soldiers feel uncomfortable living with their gay peers.
Judges were also keen to learn about the rather unfamiliar issue. They asked very fundamental questions such as whether homosexuality is an innate quality and whether other countries have exclusive rooms or positions for gay soldiers. "I am new to the issue and it is time for us to learn," said Lee Kang-kook, president of the Constitutional Court.
The Constitutional Court ruled the law constitutional in 2002 when filed by a civilian who argued the military banning homosexual relationships violated the human rights of soldiers.
Jung said, "The law and military should reflect the changing trends and openness."