Abstract
This article analyses and makes criticism on the way the rights of sexual minority are dealt with in current Korean judicial system through one case. The Constitutional Court first made clear that the major legal interest of this article is the military principle. It then concluded that members of the army, governed by Military Criminal Law, are capable of knowing that ‘sexual conduct’ in this article means ‘sexual behavior against good sexual moralities and that therefore cause aversion unto general population, such as homosexual conduct that did not go as far as gay sex’ provided that they have sound common knowledge and average legal feelings. Next, the Constitutional Court decided that prohibiting sexual behavior between the same sex is an effective way of maintaining military discipline, and that, considering that the legal interest to be protected in this article is military discipline, punishing without taking each specific situation such as damages into account cannot be seen as arbitrary exercise of legislative power, and also that this article has not exceeded the level of degree needed to protect its legal interest because the level of restriction on sexual self-disciplinary right is not higher than the importance of public good such as military discipline. Article 10 of the Korean Constitution declares that every citizen of the country has the dignity and value of man and the right of happiness. The right of self-discipline is derived from protection of the right of happiness, and the right of self-discipline includes the right of sexual self-discipline, which gives people the right to have or not to have sex and also the right to choose a partner. The major opinion provides the ground for applying the mere rationality standard to be the fact that the clause does not discriminate people because of their sex, nor does it cause a serious restriction on related basic rights—but this is simply marginalization of sexual minority. Even the dissenting opinion considers every homosexual activity as ‘abnormal’. The dignity of a good citizen must not be violated just because of some public prejudice about ‘what is normal’.
- Introduction
This article analyses and makes criticism on the way the rights of sexual minority are dealt with in current Korean judicial system through one case. The term ‘sexual minority’ in fact includes various groups such as gays, lesbians, trans-genders and inter-sexuals, but for the sake of convenience, this article shall focus on important cases arguing on the rights of homosexuals only. The case in question is the following:
Military Criminal Law 92, The Constitutional Court of the Republic of Korea, 2011.
- Summary of the Case
(1) Factual Aspects
The criminal defendant used to be a vice commander of the platoon that the victim was in. He was backed on charge of several violations of ex-Sexual Crime Act: the defendant was convicted for coercing the victim into lying down with the latter’s head on his arm in the officers’ dormitory in March 2008; the defendant was also accused of sexually harassing the victim every day from May 2008 to June 2008. He was once settled out of court, but was again prosecuted for sexual conduct defined in article 92 of ex-Military Criminal Law. The court for armed forces made adjudication on the constitutionality of the article while the case was in continuity at the first trial.
(2) Constitutional Court Decision
The military court claimed that article 92 of ex-Military Criminal Law is in violation of clarity principle which is included in the principle of legality, because not only does it give very vague idea on whether the term ‘sexual conduct’ includes sexual contact between female couples or heterosexual couples by coercion, but also offers no standard relevant to the relationship between the performers or the place where the conduct took place. It also pointed out that punishing every kind of sexual behavior between homosexual couples without any account on each situation cannot be an effective way to protect military discipline; as well as such action is in violation of the right of self-determination and privacy of gays and lesbians for it has gone beyond the level of regulation needed to achieve its purpose of legislation. Finally, the recommender argued that, if this article punishes homosexual sexual activities only by imprisonment, neither will there be proportion between the object of discrimination and the method, nor can it be exempted from the violation of the right of equality even by the mere rationality standard.
At this, the Constitutional Court first made clear that the major legal interest of this article is the military principle. It also pointed out that as long as a certain element lets someone with sound common knowledge and average legal feelings know who the target of the article is and what specific behavior is prohibited, it is not in violation of the clarity principle in the principle of legality, and concluded that members of the army, governed by Military Criminal Law, are capable of knowing that ‘sexual conduct’ in this article means ‘sexual behavior against good sexual moralities and that therefore cause aversion unto general population, such as homosexual conduct that did not go as far as gay sex’ provided that they have sound common knowledge and average legal feelings. Next, the Constitutional Court decided that prohibiting sexual behavior between the same sex is an effective way of maintaining military discipline, and that, considering that the legal interest to be protected in this article is military discipline, punishing without taking each specific situation such as damages into account cannot be seen as arbitrary exercise of legislative power, and also that this article has not exceeded the level of degree needed to protect its legal interest because the level of restriction on sexual self-disciplinary right is not higher than the importance of public good such as military discipline and, furthermore, national security. Finally, after the Constitutional Court found this article to be irrelevant to sexual discrimination that is particularly prohibited by the Constitution, and as there seemed to be no other particular violation of basic rights to arise in the relevant area, the Court brought out the loose standard of examination and then decided this article is not in violation of the right of equality of gays or lesbians because ‘there is higher possibility of the occurrence of gay sex than heterosexual ones, and if this tendency is to be left unregulated, military discipline will fall apart.’
The supplementary comment of this decision first made analysis on this article, concluding that the term ‘sexual conduct’ does not need coercion; and the term ‘gay sexual conduct’ ruled by this article includes sexual behavior between homosexual military men only; and private sexual behavior with a homosexual person who is not in the armed forces is not to be punished by this article. The commentary found no violation of clarity principle in this article because a constitutional way of reading as above is possible.
The dissenting opinion concluded that the article is in violation of the clarity principle, pointing out three things: first, even though sexual conduct by coercion and sexual conduct by voluntary will should be treated differently, this article punishes both equally; second, there is no standard to draw the line between sexual conduct and non-sexual conduct; third, there is no specific definition regarding the subject and the object of the article is not mentioned, let alone the place of occurrence. Additional supplementary comment of the dissenting opinion believed that there is certain necessity to prohibit homosexual love, but that the term ‘sexual conduct’ is not clear enough to be an element of a crime.
Lastly, the restricted-constitutional opinion first interpreted that the article does not apply to homosexual behavior only, taking gay sex as a mere example of sexual conduct, and then concluded sexual conduct between soldiers inside the camp or sexual conduct committed by an military member outside the camp may need to be controlled, but that this article should not be applied when a military member commits sexual conduct toward a civilian outside the camp.
III. Review
- Sexual Minority and Equality
- Sexual Minority
Generally, only two kinds of sex are known to exist: male and female. Humans are usually born with either sex, form sexual identity with the given biological sex and build partnership with someone of a different sex. But there are people who do not go with at least one of the elements mentioned above.
Even if someone has been successfully born to be biologically male or female, the formation of sexual identity is influenced by a variety of circumstances relevant to gender. For example, let’s say that there are two men, A and B, both very secure of their manhood. Even though they have no trouble admitting themselves to be male, A may be fond of women as partners only, whilst B may prefer men over women, or even loves men only. Vanessa Baird, in The No-Nonsense Guide To Sexual Diversity, mentions that less people than we think want heterosexual partnership only.[i] In this case, B is sexual minority, exposed to social prejudice and discrimination, compared to A, despite the fact that A and B are of the same sex. Trans-genders also suffer because the society treats them only by their biological sex. In some cases, it is not even easy to tell whether someone is male or female because their sexual organs do not fall clearly into either of those categories. All the people mentioned above are called sexual minority.
The cognition and treatment for sexual minority differ from culture to culture, and global trend changes rapidly every year. There are some cultures that are relatively more open to sexual minority, but there are other cultures where sexual minority are taken as abnormality, or almost treated as being non-existent. For the moment, the existence of gay, lesbians and trans-genders are comparatively well-known and can be found everywhere in modern society, but cultural sexual minority such as Nadle of Navajo, a Native American tribe, exist as well.[ii]
The movement toward announcing the existence of sexual minority and protecting their rights is often called the LGBT movement these days. There is a wide variety of sexual minority in this world and four categories consisting of Lesbians, Gays, Bisexuals and Trans-genders cannot cover them all, but for the moment, this term may be considered popular. The term ‘queer’ is also used commonly (from the 90’s, the term ‘Iban’ is also used in the Republic of Korea). Legal systems of most countries are set from the perspective of heterosexuals, and in many cases sexual minorities are discriminated or even become the target of hate crimes, so this movement is important in terms of human right.
Various sexual minorities are respectively suffering from different types of human right violation, thus there is no single clear-cut answer to the question: what policy will make their life better? Even in the issue of the same sex marriage, and even in the same group of lesbians, opinions differ: woman A may want to form a family with a female partner that is just like the traditional image, but woman B may want to raise questions on the patriarchal concept lying in the word ‘marriage’ in the first place.[iii]
It is hard to know how many sexual minorities exist in numbers. The existence of homosexuals, especially gays, is comparatively more accepted in the modern society, but the rest of sexual minority are, in many cases, reluctant to ‘come out of the closet.’ But, according to records, it is reasonable to believe that sexual minority have always existed. In Is it a Choice?, Erik Marcus mentions that many statistics predict the number of gays and lesbians must be about 2~3 percent of human population.[iv]
- Sexual Minority in Korean Law
Article 10 of the Korean Constitution declares that every citizen of the country has the dignity and value of man and the right of happiness. Also, the 1st paragraph of article 11 of the same law guarantees legal equality so that no one shall be discriminated in the field of politics, economics, society and cultural life because of their sex, religion or social rank. A series of laws and ordinances are provided in order to protect such basic rights guaranteed by the Constitution. In particular, Framework Act on Women’s Development and Sexual Equality Employment Act were enacted in order to achieve proportionate equality in fields where equality is not yet set.
However, the issue of discrimination based on sexual orientation is not much in the public interest, compared to the issue of sexual discrimination. In Korean law, only the traditional two sexes are recognized, and the history of sex exchange is fairly short. It was only 1996 when the court decided that an MTF trans-gender, that is someone who was born with male body but was changed into woman, was not to be acknowledged as the object of rape.[v] Same sex marriage is still not approved by court, and the very existence of inter-sexuality is not really out in the open.
Of course, without few exceptions, the law itself does not allow discrimination towards sexual minority. On the contrary, the Korean Constitution clearly states that every citizen have the right of happiness. Also, about the issue of same sex marriage, no clause in the constitution or the family law ever says anything about prohibiting same sex marriage or any same sex partnership other than marriage—it is the court’s decision that sees marriage as ‘a mental and physical union of a man and a woman.’[vi] That is, not the law but political interpretations force sexual minority to fit their identity into the idea of the public, making social infrastructure harsher for them when seeking happiness.
The most popular constitutional principle when talking about the protection of human rights of sexual minority is the protection of the right of happiness. The right of happiness contains in itself the capability to seek the right and the freedom needed in order to maintain the value and the dignity of man without intrusions from the nation. This is one of the most important factors in the rights guaranteed by the constitution. The right of self-discipline is derived from protection of the right of happiness, and the right of self-discipline includes the right of sexual self-discipline, which gives people the right to have or not to have sex and also the right to choose a partner.
Contrary to the fact that two precedent cases decided a part of the ex-Juvenile Protection Act that states ‘encouragement for being gay’ as a factor to make a content ‘harmful for teenagers’ is not wrong, Seoul Court of Administration made a decision in 2010 that ‘just because a movie has homosexual love in its story, it doesn’t mean that teenagers won’t be able to understand and accept it through their average knowledge as well as experience’.[vii]
The constitutionality of article 92 of ex-Military Criminal Law had been issued in 2002 already, in which the majority opinion defined sexual conduct as ‘general variation of sexual behavior different from normal sexually satisfying action’ and judged the ‘classic and typical example’ of such activity is ‘gay sex’.[viii]
- Review on the Case
In this case, the majority opinion starts with stating the legal interest to be protected in this article is military discipline, concluding that if sexual disorder grows rampant in the armed forces, the maintenance of power of the military may be at stake. First, there can be no question of the fact that military discipline is important in the armed forces. But, even though there were several things that needed to be closely analyzed first, the majority opinion seems not to have made such effort: what is sexual disorder, and what is the relationship between it and the concept of ‘gay sex and other sexual conduct’? In what way is the protection of power in the military related to sexual contact between military members?
From context, sexual disorder probably means the kind of act that people with ‘sound common knowledge and average legal feelings’ do not engage in, considering what the majority opinion mentioned in the part of the clarity principle and the legality principle. But this definition is, of course, too vague. For example, if a married person makes a number of partners and not pay due respect to their spouse, it will be usually clear that such attitude is sexually disorderly. But what should be done about sexual disorder in the military, where most members are young men who are not married to anyone yet? Considering the expressions used in the part where the court defined ‘sexual conduct’, it seems that the court wanted to define sexual disorder as ‘homosexual affair that did not go as far as gay sex’.
Such cognition brings forth the problem that lies within the expression that the majority opinion used for homosexual affair. The court believed that there is no danger of arbitrariness in the application of this article because homosexual love is ‘against good sexual moralities and that therefore cause aversion unto general population’, but there is no reasonable ground for such declaration that homosexual conduct objectively arouses disgust from average citizen. With only few exceptions in Third World tribes where gays and lesbians are sometimes considered as coming from Western imperialism, same sex love is getting more and more known and accepted in the world of heterosexual people on the contrary. In places where human rights are respected, there are many campaigns and legislative efforts going on in order to guarantee happiness for gays and lesbians as well. Deriving sexual disorder right out of homosexual behavior only shows that the judge is homophobic.
Then, what if the expression ‘homosexual behavior that did not go as far as gay sex’ was just an example of the things that happen often in the military, and that this clause prohibits all ‘sexually disorderly’ acts, regardless of the sexual-orientation of conductors. Then every kind of sexual behavior should have been prohibited, including marriage between heterosexual military members. But considering the context of the latter part of the court decision, it is hard to think of it that way. Besides, there seems to be no ban on inter-soldier marriage.
The attitude that the majority opinion showed later also indicates their discriminative perspective on homosexuality. The decision that the legal interest to be protected on this case is military discipline, not sexual freedom, and therefore there is no arbitrariness in punishing every sexual conduct in the same way sounds reasonable at first but a legislator, regardless of the theme of the article, should have considered if there is practical balance between the legal interest that is violated and the punishment. That is, even though a clause protects military discipline, if this clause clearly contains the danger of violating sexual freedom, such situation should have been taken into account. The declaration made in the case merely decides that military discipline is more important than sexual self-discipline, and the latter is in fact being violated. In spite of such circumstance, the court did not make any of such matters an issue but only stated that the level of degree of the regulation on the right of sexual self-determination in the armed forces is not bigger than public good such as military discipline and national security when deciding the balance of legal interests. Such decision does not give out the impression that the judges were paying due respect to the right of sexual self-determination of gays and lesbians.
The major opinion also provides the ground for applying the mere rationality standard to be the fact that the clause does not discriminate people because of their sex, nor does it cause a serious restriction on related basic rights—but this is simply marginalization of sexual minority.
Although the Constitution does not specifically states that there should be no discrimination based on sexual orientation, it is matter of course that present discrimination causes serious regulation on the right of happiness and the right of sexual self-determination of sexual minority. Considering the ground of the court that there is higher possibility of the occurrence of homosexual activity than that of heterosexual activity, it is clear why the court believed there is not much regulation on the basic human rights. The majority opinion first made the notion that, if there is any chance, any normal person in the military will naturally choose heterosexual partnership, and then concluded that homosexual relationships occur just because there is no chance of finding a partner otherwise in the army. Such idea, however, is of course not true. According to modern studies, one’s sexual orientation is set the moment they are born. Whether someone is in the military or is working in civilian society, the possibility of their being homosexual does not go any higher or lower.
Of course, being homosexual and having homosexual activity with someone else are different matters. Nevertheless, when two grown-ups have sexual affair voluntarily, there should be no difference in value whether they are of the different sexes or not and further, such occurrence is natural if the two like each other. Even if the law does not punish being gay, disapproving homosexual contact is still violating the right of sexual self-determination.
The majority opinion points out in particular the possibility of a superior sexually harassing a member of their troop who may not have the same sexual orientation. This, considering the severe order of rank and secrecy of the military, is not groundless. But in such cases, the application of sexual crimes can be encouraged instead, which should be a big issue whether they were committed between heterosexual people or not. The court is practically saying that it is reasonable to ban every kind of sexual behavior in order to control sexual harassment.
The supplementary comment is not much different from the majority opinion. It only makes specific interpretation concluding that every homosexual conduct in the military is prohibited regardless of the existence of coercion, whilst the article should not be applied to a relationship with a civilian. But still, the comment also exhibits its prejudice against sexual minority, using discriminative expression such as ‘perverse sexual activity’.
The dissenting opinion points out that the clause is in violation of the clarity principle, but does not mention the issue of discrimination towards gays and lesbians. The point of the dissenting opinion is that the range of application of this clause must be specified, but while stating examples it used foreign laws where ‘abnormal’ sexual behaviors are punished. This is not good, for such stipulation consider every homosexual activity as ‘abnormal’. The supplementary comment of the dissenting opinion commits the same mistake.
The restricted-constitutional opinion, even though the clause at issue states gay sex as an example, believed that it must apply whether the conduct was between heterosexuals or homosexuals, so it may be hard to consider the opinion itself to be making discrimination. Nevertheless, it must be thoroughly scrutinized to see whether inflicting punishment with this clause does not violate the right of privacy or the right of sexual self-determination of military members.
- Conclusion
In the modern world, sexual discrimination is performed in the way for people to believe present discrimination to have reasonable ground, instead of admitting the existence of problems. In Korean society, it has not been so long since cultural contents that have gays in the story were aired, and the other relatively minor kinds of sexual minority are not even really known to exist. In this society where people like to be very similar to each other and traditional family network is strong, living as minority in whatever way must be a harsh thing even if there is no written discriminative clause.
Although the Constitution guarantees the right of equality and the right of happiness that belong to every single citizen, in reality, even educated people who are in charge of applying law do not have enough knowledge about sexual minority, and this creates a serious problem. In a democratic society where freedom and the right of man are respected, the dignity of a good citizen must not be violated just because of some public prejudice about ‘what is normal’.
[i] Vanessa Beard, The No-Nonsense Guide to Sexual Diversity, E-Who (2007)
[ii] Ibid.
[iii] Korean Sexual Violence Relief Center, Studies on Sexuality, Dongnyeok (1999), p. 262-267.
[iv] Eric Marcus, Is it a Choice?, Park Young-Yul Publishing House (2000)
[v] About whether a trans-gender can be considered the object of rape, The Supreme Court, 1996
[vi] About the marriage between people of the same family name, The Constitutional Court, 1997
[vii] About the standard by which a cultural content becomes inappropriate for teenagers, Seoul Court of Administration, 2010
[viii] About the constitutionality of the 92nd article of ex-Military Criminal Law, The Constitutional Court, 2002
Reference
About whether a trans-gender can be considered the object of rape, The Supreme Court, 1996
About the marriage between people of the same family name, The Constitutional Court, 1997
About the constitutionality of the 92nd article of ex-Military Criminal Law, The Constitutional Court, 2002
About the standard by which a cultural content becomes inappropriate for teenagers, Seoul Court of Administration, 2010
Eric Marcus, Is it a Choice?, Park Young-Yul Publishing House (2000)
Korean Sexual Violence Relief Center, Studies on Sexuality, Dongnyeok (1999), p. 262-267
Vanessa Beard, The No-Nonsense Guide to Sexual Diversity, E-Who (2007)
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