Court rules consensual same-sex acts may breach discipline if on duty or in barracks

A view of the Supreme Court building in Seocho District, Seoul. Yonhap

South Korea’s Supreme Court has ruled that consensual same-sex acts between military personnel can be punished under military law if they occur inside barracks during rest hours or while on duty, citing disruption of military discipline.

This is the first ruling to establish specific criteria for punishment since a landmark 2022 Supreme Court en banc decision recognized the sexual autonomy of soldiers and said consensual same-sex relations in private spaces should not be categorically criminalized.

According to legal sources on Sunday, the Supreme Court’s third division, presided over by Justice Lee Heung-gu, overturned a lower court’s acquittal of a former soldier, identified as A, who had been charged with committing indecent acts under the Military Criminal Act. The case has been sent back to the Uijeongbu District Court for retrial.

The former soldier served in an Army unit in Nonsan, South Chungcheong Province, and was indicted for engaging in consensual sexual activity with another male soldier, identified as B.

The acts took place during rest hours in a quarantine barracks in July 2020 and again in a bathroom during night duty in September of the same year.

While the trial court initially handed down a suspended four-month sentence, the appeals court acquitted A, stating that consensual acts that do not clearly undermine military discipline should not be criminally punished.

The Supreme Court, however, disagreed. While affirming the principle of sexual autonomy established in the 2022 decision, it emphasized that acts occurring in specific military contexts — such as inside shared barracks or during official duties — fall within the scope of military indecency charges.

The court described barracks as spaces “inherently tied to military training and collective life, governed by strict discipline and hierarchical order,” and night duty as “a time when a soldier is actively engaged in performing military responsibilities.”

“Even if sexual autonomy is partially restricted,” the court ruled, “if such conduct takes place in areas or situations where maintaining discipline and order is crucial, it constitutes a direct and substantial breach of military conduct.”

This article from the Hankook Ilbo, the sister publication of The Korea Times, is translated by generative AI and edited by The Korea Times.