The South Korean National Human Rights Commission (NHRCK) [official website, in Korean] has determined that the provision of the military penal code banning same-sex relationships is unconstitutional, according to a report released Wednesday. Under Article 92 of the South Korean Military Criminal Code, same-sex relationships among soldiers are punishable for up to one year in prison and forced retirement. In May, a gay advocacy group filed a petition with NHRCK over the constitutionality of Article 92. Following the petition, the NHRCK met this week to prepare a position for the Constitutional Court of Korea [official website, in Korean], arguing that the law violates the privacy of service members [Korea Times report] and infringes upon their rights to equality and freedom of sexual preference. Conversely, the Ministry of Defense [official website, in Korean] asserts that allowing same-sex relationships would deplete overall military discipline [KBS report] and incite conflict. The Constitutional Court is currently reviewing the law. According to the NHRCK, between 2004 and 2007, Article 92 was applied to 176 cases, and three soldiers were tried and convicted under the law.
South Korea's military policy is similar to the US's controversial "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. Last week, US Defense Secretary Robert Gates [official profile] issued a memorandum limiting the authority to discharge openly gay service members [JURIST report] to five senior Defense Department officials. The memo is seen as a response to the uncertain future of the DADT policy, arising from the recent injunction [JURIST report] by the US District Court for the Central District of California [official website] and the subsequent temporary stay [JURIST report] issued last week by the US Court of Appeals for the Ninth Circuit [official website]. Since the enactment of DADT in 1993, approximately 13,000 US servicemen and women have been discharged from the armed forces as a result of the policy.