Case Analysis: Non-Criminalization of Same-Sex Relations

Abstract

AbstractThe Korean Military Criminal Law, which criminalizes homosexual activities, violates fundamental principles and rights of the Korean Constitution because its legislative objective and protected interests are vague. Furthermore, Article 92 KMCL should be abolished because this criminalization violates the principle of legality, the principle of proportionality, and the principle of non-discrimination. Non-criminalization of homosexual relations is considered as the initial step towards the prohibition of discrimination based on sexual orientation. The article under the Korean Military Criminal Law still exists to punish homosexual relations between consenting adult soldiers in South Korea. Sexual minorities suffer tremendously from the existence of such laws to criminalize same-sex sexual acts.Non-criminalization of same-sex relations is a case in which protection is mostly given to sexual minorities in the European system. P. Johnson discusses the criminalization of same-sex relations as the initial stage of the discussion, starting from Dudgeon v. the United Kingdom (European Court of Human Rights, Dudgeon v. United Kingdom, judgment of 22 October 1981.) during the period of 1976 to 1983. This implies that non-criminalization of same-sex relations is considered as the beginning of the discussion regarding protection of sexual minorities in Europe. As of 2020 (ILGA World: Lucas Ramon Mendos, Kellyn Botha, Rafael Carrano Lelis, Enrique López de la Peña, Ilia Savelev and Daron Tan, State-Sponsored Homophobia 2020: Global Legislation Overview Update (Geneva: ILGA, December 2020, p. 113).), no European countries criminalize consensual same-sex sexual acts between adults. On the other hand, 21 out of 42 Asian countries of UN Member States (21 out of 42 UN Member States in Asia criminalizes same-sex sexual act. Additionally, 1 UN Member State of Iraq is considered as de facto criminalization because its penal code does not explicitly prohibit consensual same-sex relations. Nevertheless, there have been cases of same-sex couples being prosecuted for same-sex sexual intimacy based on this criminal provision. Several subnational jurisdictions in 1 UN Member State of Indonesia and one region within 1 non-UN Member jurisdiction of Gaza in Palestine criminalizes same-sex sexual acts. (Ibid., pp. 129–140.)) still criminalizes consensual same-sex sexual acts between adults.The ECtHR has concluded in the Dudgeon case that the applicant has suffered an unjustified interference due to the existence of laws in Northern Ireland whose effect makes certain homosexual acts between consenting adult males criminal offenses (European Court of Human Rights, Dudgeon v. United Kingdom, judgment of 22 October 1981, paragraph 13.). With the abolishment of criminal code provisions which punished consensual same-sex sexual acts between adult men in Northern Cyprus as of January 27, 2014 (Northern Cyprus abolishes the last law in Europe criminalizing homosexuality. Taken from “the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) Europe” https://www.ilga-europe.org/resources/news/latest-news/northern-cyprus-abolishes-last-law-europe-criminalising-homosexuality. Accessed November 30, 2021). No European country criminalizes same-sex sexual acts in Europe. Consensual same-sex relations between civilians are not criminalized in South Korea. Nevertheless, same-sex relations between consenting adults are criminally punished under the Korean Military Criminal Law (“KMCL”). Furthermore, the Constitutional Court of Korea has not yet decided that the provisions criminalizing same-sex relations in KMCL are unconstitutional. This chapter will show why this provision of KMCL should be abolished mainly because it violates the principle of proportionality. Subsequently, non-criminalization of same-sex relations in the case law of ECtHR, India, and America will be discussed.KeywordsNon-criminalization of same-sex relationsKorean Military Criminal LawSupreme Court Decisions of IndiaGetting Rid of Sodomy LawComparative analysis