period, from 2012 to 2021.435) Meanwhile, from 2015 to 2019 (five years), 57 cases were
investigated for violating this provision, and 1 case was sentenced to imprisonment and 10
cases were suspended.436)
This provision was used to prevent a vacuum in punishment when sexual assault crimes in
the past were stipulated as offenses subjected to victim’s complaints, or when the victim
withdrew the complaint in the context of the military and was unable to apply the sexual
assault punishment provisions, or cases where it is difficult to prove coercion.437) However,
as the provisions on the indecent act by force and quasi-indecent act were newly included in
the Military Criminal Act in 2009, and as the provision on quasi-rape was also added in
2013, this provision mainly served the function of punishing same-sex sexual acts conducted
on a mutually consensual basis,438) and exposed the following problems.
First is a problem related to the principle of clarity of the principle of legality. This
provision does not provide any standards as to the level of obscenity that can be considered
‘other indecent act.’ The Constitutional Court considered ‘other indecent acts’ as ‘acts of
sexual gratification between soldiers of the same sex who have not reached the penetration,’
and ruled that the sexual intensity of the act may be less than that of penetration (anal
intercourse). In other words, the perpetrator cannot foresee whether acts of light kissing,
hugging, deep kissing, or touching the genitals of the other soldier fall under ‘other indecent
acts.’
Second is excessively restricting soldiers' right to sexual self-determination the privacy
and freedom by subjecting the private sexual life of individuals to criminal punishment. This
provision prohibits specific sexual acts through the state intervention and plans detection,
investigation, and punishment by the state in case of violation by the state interfering with an
individual’s intimate private life. However, anal sex between soldiers under mutual consent
435) Lee, Sang-hyeon, A study on anal sex and other indecent offenses under the Military Criminal Act: Focusing on the
comparison of legal history, legal theory and precedent, Soongsil University, School of Law, Thesis of Law, Vol. 36, 2016.
436) Ministry of Justice, Answers to the Question List to the 5th National Report of the UN Covenant on Civil and Political
Rights, 2019, Pg. 26.
437) Lee, Ja-yeon, A study on indecent acts under the Military Criminal Act, Wonkwang Legal Studies Vol. 34, No. 2,
Wonkwang University Legal Research Institute, Jun. 2018, Pg. 163~164.
438) According to data submitted by the Ministry of National Defense to the NHRCK (Dec. 9, 2021), 53 cases (79.1%),
out of 67 cases to which this provision was applied from 2016 to the first half of 2021, were ‘sexual acts between
consenting parties.’
184
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