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Copyright (c) 2010 Law & Sexuality
Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues

Article: Assessing the Korean Military's Gay Sex Ban in the International Context*

* This Article was awarded Harvard Law School's inaugural LGBTQ Writing Prize in 2009.

2010

Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues

19 Law & Sex. 67

Author

Alvin Lee+**

Excerpt



I. Introduction
 
For several months in early 2008, two men in the Korean 1 military were involved in a sexual relationship with each other. 2 According to all available evidence, the sex was consensual and private. 3 In spite of this, one of the men was indicted under article 92 of the Korean Military Penal Code, 4 which criminally punishes male-male sexual activity between military servicemembers. 5 If ultimately convicted, he could face up to one year of imprisonment, dishonorable discharge from the military, and damaging social sanction for the rest of his life. 6

The military court in which the defendant is being prosecuted has, for the time being, suspended the proceedings against him and recommended that article 92's constitutionality be reviewed by the Korean Constitutional Court. 7 The military court's evaluation of article 92 is that the statute is indeed violative of several key provisions of the Korean Constitution, including those mandating that criminal laws not be impermissibly vague as well as those guaranteeing personal liberty rights and equal treatment under the law. 8 The case has been accepted for review by the Constitutional Court and is currently pending final resolution. 9

While certainly intriguing as a study in the doctrinal contours of Korean constitutional law, this recent challenge to article 92 sheds light on a broader set of human rights issues connecting Korean law, militarism, and the interaction between national institutions and private sexuality. Set against the backdrop of an ongoing civil war, 10
 
 
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