Indecent Sexual Acts under the MilitaryCriminal Act Case

(14-1 KCCR 601, 2001Hun-Ba70, June 27, 2002)

In this case, the Constitutional Court upheld the statutoryprovisionof the Military Criminal Act, stipulating punishment of individualswho committed "sodomy or other acts of indecent sexual acts" because it did not violate the principle of clarity nor the rule against excessive restriction.

A. Background of the Case

Article 92 of the Military Criminal Act stipulates that "A personcommitting sodomy or other acts of sexual harassment shall bepunished by imprisonment for not more than one year." The com-plainant, an army corporal, was indicted for twice touching thesexual organ of his subordinate in the barracks during bedtime, and stoodtrial at the ordinary military court. The complainant petitioned theCourt to request constitutional review of the instant statutory pro-vision, arguing that the proscription of "other acts of indecentsexual acts" was against the principle of clarity because the scope of regu-lation was too wide and that punishment of such minorsexual harass- mentsas the instant case would violate the principle ofproportional-ity. When the Court did not grant the request, the complainant filedthe instant constitutional complaint.

B. Summary of the Decision

The Constitutional Court upheld the part stipulating "other actsofindecent sexual acts" on a majority vote of seven Justices asfollows:

(1) Majority Opinion

(A) The principle ofnulla poena sine legestipulated by theConstitution requires that elements of regulation by the law beclearly defined in order to inform individuals being subject to the law what actions would be regulated under the law so that they can determine the course of their action accordingly. While the statutemust be sufficiently clear about what the prohibited conduct is, itdoes not mean that the legislators need to describe every detail literally.As long as a person with common sense and ordinary sensibilitiescould predict who would be subject to the statute and what conduct would be prohibited under the law, it is not against the principle of clarity derived from the principle ofnulla poena sine lege.

(B) The legal interest to be protected by the instant statutoryprovision is not "sexual freedom of an individual", but rather,"soundliving conditions and morale with the community of the armedforces."Ordinarily, "indecent sexual acts" refers to diverse activities thatmay not be termed as ordinary sexual satisfaction. The specific scope ofapplication changes with social changes. Therefore, it would beimpossible, or at the least, very difficult to observe the principle ofclarity by predicting all types of abnormal sexual activities and spe-cifically and descriptively listing acts falling under the category of"indecent sexual acts". Therefore, the Court should examinewhether it is possible to make reasonable interpretation of

the general termof "indecent sexual acts" with due consideration to the legislativeobjective of the provision and its relationship with other provisionsin order to make final judgments on whether the instant statutoryprovision violates the principle of clarity. In its previous ruling, theSupreme Court suggested a reasonable criterion on the matter: Itruled that in order to conclude that there was a breach of the law,the Court should examine whether there was violation of the legalinterest that the provision seeks to protect.

According to such criterion, "indecent sexual acts" prohibited bythe instant statutory provision is an act that violates the legalinterestof "sound living conditions and morale with the community of thearmed forces" and that would be seen as an offensive act of sexualnature by an ordinary citizen. Since an individual with commonsense and ordinary sensibilities subject to application of the Military Criminal Act could easily predict what conduct would be prohibitedunder the law, and since arbitrary interpretation of the law is notprobable, the instant statutory provision does not violate theprinciple of clarity.

(C) It cannot be said that legislators abused their legislativediscretion by enacting the statute punishing all acts of indecentsexualacts by imprisonment for not more than one year withoutsubdividingthe prohibited acts into specific types of indecent sexual acts orwithout considering the victim's status. Therefore, the instant stat-utory provision does not violate the rule against excessiverestriction.

(2) Dissenting Opinion of Two Justices

As the majority of Justices ruled, a person with ordinary sensi- bilities could understand what "indecent sexual acts" means, and the principle of clarity concerning the meaning of the terms used in the provision would not pose a problem. However, it is unclear whetherthe instant statutory provision requires "coerced" indecent sexualacts for its application. The instant statutory provision does not clearly state who the actor or the victim of the crime would be. Therefore,it would be difficult to confirm the scope of activities that wouldfallinto the category of "indecent sexual acts", and hence, it violatestheprinciple of clarity. Furthermore, if "indecent sexual acts" of theinstant statutory provision includes acts between two individualscommitted voluntarily and secretly so as to be inoffensive to others, it would violate the rule against excessive restriction to punish such acts by imprisonment for not more than one year.