Case on the Constitutional Complaint against Article 92-5 of theFormer Military Criminal Act Which Prescribes Punishment by Imprisonment for ‘Other Indecent Conduct’

[2012Hun-Ba258, July 28, 2016]

In this case, the Constitutional Court held that the term ‘other indecent conduct’ in Article 92-5 of the former Military Criminal Act, which prescribes punishment by imprisonment with prison labor for not more than two years for other indecent conduct that falls short of sodomy, does not violate the Constitution in terms of the rule of clarity of the principle ofnulla poena sine lege, the rule against excessive restriction, and the principle of equality, etc. Meanwhile, four justices issued the dissenting opinion that the Instant Provision violates the rule of clarity ofthe principle ofnulla poena sine lege, and thus violates the Constitution.

Background of the Case

The petitioner was prosecuted for the charge of committing indecent conduct on the victim a total of 13 times, from early October through December 13 of 2011, by placing his hand inside the underpants of the victim, a lower-ranking subordinate, and touching the victim’s genitals, etc., in the army barracks of his regiment or the waiting room of a sentry post on the shore. As a result, the petitioner was sentenced to six months imprisonment with prison labor, but with a stay of execution for one year, on February 22, 2012.

The petitioner appealed and, while this trial was pending filed a motion to request the constitutional review of Article 92-5 of the former Military Criminal Act, which was the provision that served as the basis for the punishment. The motion was denied on June 15, 2012, whereupon the petitioner filed a constitutional complaint on July 9, 2012.

Subject Matter of Review

The subject matter of this case is whetherthe term ‘other indecent conduct’ in Article 92-5 of the former Military Criminal Act (amended by Act No. 9820 on November 2, 2009, and before amendment by Act No. 11734 on April 5, 2013)(hereinafter referred to as the “Instant Provision”) violates the Constitution.

Provision at Issue

Former Military Criminal Act (amended by Act No. 9820 on November2, 2009, and before amendment by Act No. 11734 on April 5, 2013)

Article 92-5 (Indecent Conduct)

A person who commits sodomy orother indecent conductshall be punished by imprisonment with prison labor for not more than two years.

Summary of the Decision

1. Whether the Rule of Clarity of the Principle ofNulla Poena Sine LegeIs Violated

Article 92-5 of the former Military Criminal Act is an illustrative type of legislation, and given that ‘sodomy’ in the illustrative provision means anal intercourse between males; that the army’s closed, same-sex society bears a high possibility of abnormal sexual acts taking place between the same sex; and that the main legal interests the Instant Provision aims to protect is the social interest of the ‘sound conduct and military discipline of the army as a community,’ the term ‘other indecent conduct’ in the Instant Provision can be interpreted as being relevant only to sexual acts between soldiers of the same sex.

The former Military Criminal Act amended in 1962 was problematic

due to its extensive scope of punishment, as it regulated indecent acts by all degrees of compulsion under ‘other indecent conduct’ in the single provision of Article 92.1)However, the former Military Criminal Act amended in 2009 separated molestation by violence or threat (Article 92-2) and quasi-molestation taking advantage of insanity or inability to resist (Article 92-3) into additional provisions, which led the term ‘other indecent conduct’ in the Instant Provision to be restricted to indecent conduct outside the scope of molestation or quasi-molestation by force.2)

Thus, the term ‘other indecent conduct’ in the Instant Provision is interpreted as indecent conduct that falls short of molestation and

quasi-molestation by force; is an act of sexual gratification between soldiers of the same sex that falls short of sodomy; and from an objective point of view, causes a sense of aversion in the general public and runs contrary to virtuous sexual moral ideals. It is also interpreted as an act that infringes on the sound conduct and military discipline of the army as a community, and whether the act in question falls under this definition would be up to the court’s general interpretation and application of laws.

Since a soldier with sound common sense and a general legal awareness is fully capable of identifying which acts would constitute the elements of the Instant Provision, and there is no cause for concern that the enforcement agencies would arbitrarily stretch the law, the Instant Provision does not violate the rule of clarity of the principle ofnulla poena sine lege.

2. Whether the Principle against Excessive Restriction Is Violated

The Constitutional Court, in the Constitutional Court Decision 2001 Hun-Ba70 on June 27, 2002, and the Constitutional Court Decision 2008Hun-Ka21 on March 31, 2011, ruled that, “The term ‘other indecent conduct’ in Article 92 of the former Military Criminal Act has the legislative purpose of establishing sound conduct and military discipline of the army as a community, and of prohibiting acts of sexual gratification between same-sex soldiers; hence imposing imprisonment with prison labor is an appropriate means for achieving this legislative purpose. Given the security conditions and the conscription system of the Republic of Korea, it is difficult to effectively regulate acts of indecent conduct between same-sex soldiers through simple administrative restrictions. Thus, the above provision does not violate the principle against excessive restriction.”

Although the above provision was since amended to the Instant Provision and raised the statutory sentence to imprisonment with prison labor for not more than two years, it cannot be concluded that the

sentence is excessively heavy compared to sentences for crimes related to disgraceful conduct prescribed in other laws. Furthermore, suspension of sentencing or execution of punishment is possible depending on the circumstances. Considering the above, it is difficult to say that there is a particular change of condition or necessity that requires an adjustment to the decision of the precedent above.

Therefore, the Instant Provision does not run contrary to the principle against excessive restriction, or consequently infringe upon the soldier’s right to sexual self-determination, right to privacy and right to physical freedom.

3. Whether the Principle of Equality Is Violated

As mentioned above, the Instant Provision does not cover ‘molestation by violence or threat,’ and thus, contrary to the claim of the petitioner, a ‘soldier’ charged with the crime of indecent conduct under the Instant Provision, and the ‘general public’ charged with the crime of indecent act by compulsion under Article 298 of the Criminal Act, belong to comparison groups of a different nature.

Further, the Instant Provision does not impose imprisonment with prison labor merely because a sexual act has taken place between soldiers of the same sex. Rather, the punishment is for an act of sexual gratification between same-sex soldiers that falls short of sodomy, which from an objective point of view, causes a sense of aversion in the general public and runs contrary to virtuous sexual moral ideals, and subsequently infringes upon the sound conduct and military discipline of the army as a community. So even if this may lead to discrimination against soldiers of the same sex in comparison to soldiers of the opposite sex, we recognize this restriction is imposed to preserve the distinctiveness and combat power of the army, and thus constitutes a reasonable cause.

Therefore, the Instant Provision does not violate the principle of equality.

Summary of Dissenting Opinion of Four Justices

The principle ofnulla poena sine legeguaranteed under Articles 12 and 13 of the Constitution requires the law to explicitly prescribe its elements, so that anyone can understand what kind of acts the law punishes, foresee what the corresponding punishment would be, and decide his or her actions based on this understanding. A vague or abstract, and thus unclear, punitive provision will make it difficult for the general public to understand what exactly is prohibited, and consequently make it hard to abide by the law. Moreover, whether a crime is valid would be left up to the arbitrary interpretation of the judge, which runs contrary to the realization of the rule of law, which aims to guarantee the freedom and rights of the public through the principle ofnulla poena sine lege.

The Criminal Act and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes strictly distinguish between ‘indecent acts,3)’ which infringe upon an individual’s sexual freedom through compulsion, and ‘obscene acts,4)’ which are not coerced but infringe on sound social morals. However, the Instant Provision prescribes the elements that constitute a crime as ‘other indecent conduct,’ with a vague indication as to whether this entails compulsion, and thus obscene acts occurring with voluntary consent and without compulsion, and molestation by violence and threat which involves compulsion of the highest degree, are punished equally under the same punitive provision. This creates an unacceptable inconsistency in the punitive system.

Moreover, the Instant Provision is an illustrative type of legislation. In such cases, the illustrative provision itself must serve as a guideline for

interpreting general provisions, and therefore the term ‘other indecent conduct,’ which constitutes the general provision of the Instant Provision, should be interpreted as acts that in the least apply to ‘sodomy,’ the illustrative provision. However, a decision by the Supreme Court (Supreme Court Decision 2008Do2222) rules that ‘other indecent conduct’ in Article 92 of the former Military Criminal Act indicates ‘sexual acts between persons of the same sex that fall short of sodomy,’ and holds that the degree of obscenity may be weaker than sodomy. This is not only because ‘sodomy’ cannot serve as the criteria for deciding whether an act would fall under ‘other indecent conduct,’ but also because no criteria whatsoever have been presented on the degree of obscenity that would constitute ‘other indecent conduct.’

As stated above, the Instant Provision provides an ambiguous prescript on the degree of conduct, making it impossible for the person engaging in acts to foresee which types of conduct would be punished by law, and incurring the arbitrary interpretation and application of law by the enforcement agencies.

Furthermore, the Instant Provision does not include any stipulation on the object of the conduct, which makes it ambiguous as to whether ‘other indecent conduct’ only applies to disgraceful conduct between males, or also applies to disgraceful conduct between females or between the opposite sexes. This is because when the Military Criminal Act first prescribed the crime of indecent conduct in 1962, it seems to have indicated only ‘indecent conduct between males’ since the army was comprised of mostly males back then. However, the number of female soldiers was on the rise when the Instant Provision entered into force in 2010, and thus the Instant Provision could be interpreted as also prohibiting ‘indecent conduct between females or between the opposite sexes.’ The Instant Provision is also vague as to whether only indecent conduct between soldiers is punished, or whether indecent conduct between soldiers and the general public is also punished.

The reason indecent conduct taking place in the army was defined differently under the Military Criminal Act since its enactment, compared

to the Criminal Act or the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, was because ‘given the nature of the army, especially in the case of enlisted soldiers, persons of the same sex sleep in groups inside military camps, and it is virtually impossible to disobey the orders of a superior under a hierarchical command chain.’ Given this, indecent conduct as defined in the Instant Provision should be limited to ‘obscene acts that take place inside military camps between same-sex soldiers.’ However, as of now it is unclear whether ‘obscene acts that take place outside of military camps’ would also fall under the Instant Provision, since it does not clarify a time and place for the act, and the legal interests to be protected, as instructed by the Supreme Court, are far-reaching and comprehensive.

Thus, the Instant Provision deprives norm addressees of predictability, and creates the possibility of arbitrary legal interpretation by the enforcement agencies, by using the vague and comprehensive terms of ‘sodomy or other indecent conduct’ for the elements of the crime, and provides no indication of the necessity of compulsion, or detailed criteria on the degree, object, time, place, etc. of the act. Therefore, the Instant Provision violates the rule of clarity of the principle ofnulla poena sine lege, and thus violates the Constitution.