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Article 92 of the Military Criminal Act is unconstitutional!

Monday, April 20, 2009

The Constitutional Court of Korea must accommodate the military court's request for a legal judgment on the unconstitutionality of Article 92 of the Military Criminal Act!


Article 92 of the Military Criminal Act: "Those who have engaged in sodomy and/or other indecent act shall be imprisoned for 1 year or less"

In August 2008, the Normal Military Court of the 22nd Infantry Division of the Korean Army requested the Constitutional Court for a legal judgment on the unconstitutionality of Article 92 of the Military Criminal Act because it could violate equal rights, the right to sexual self-determination, and the right of privacy. Although half a year has already passed, the Constitutional Court has postponed and delayed this issue. Judging that Article 92 of the Military Criminal Act promotes homophobia and violates equal rights and the right to sexual self-determination, the Network for Reporting the Violation of the Human Rights of Sexual Minorities in Relation to the Military has initiated activities to urge the Constitutional Court for a judgment on its unconstitutionality. The anachronistic Article 92 of the Military Criminal Act can't completely resolve sexual violence in the military. Instead, it is the time to strengthen policy and education to eradicate homophobia. The Constitutional Court mustn't repeat the mistake it made in 2002 in an examination of a petition regarding the constitutionality of the same Article 92: "The said article must exist to maintain the sexual health of the military family." We strongly hope that many will take part in and support our activities to urge a judgment on the unconstitutionality of Article 92 of the Military Criminal Act.


The easiest way to take part in the campaign:
Completing a petition to the Constitutional Court


1) Download, print out, complete, and sign the petition form attached above (either of the two files above).
2) Individuals may also create their own petitions.
3) Mail or fax the completed petition to the Network for Reporting the Violation of the Human Rights of Sexual Minorities in Relation
to the Military (see address below).
4) Finally, actively encourage your family, friends, and colleagues to participate!


Why must Article 92 of the Military Criminal Act be abolished?

First, Article 92 of the Military Criminal Act promotes homophobia and discrimination. Included in Article 92 of the Military Criminal Act, the Korean word for sodomy denigrates a particular sexual act by likening it to an act performed on an animal. This hateful language designates as an "indecent act" even a consensual sexual act, as if homosexuality itself were but a type of sexual violence. Indeed, the National Human Rights Commission of Korea has pointed out in "2007-2011 Recommendation Proposal on National Action Plans for the Promotion and Protection of Human Rights; NAPs on Human Rights" that
the same article revealed discrimination and prejudice against homosexuality and recommended the Ministry of National Defense to reform this law. No term or name used in laws must reflect prejudice and preconception. The Korean word for sodomy in this article must be replaced by a more neutral and objective word or removed altogether.

Second, Article 92 of the Military Criminal Act can violate equal rights and individual privacy.Even when the special nature of the military is taken into consideration, the criminalization and punishment even of relations based on mutual consent can't be justified constitutionally. If two male soldiers engage in sexual acts in a private space under mutual consent on their leaves, should they be punished for it? It's preposterous indeed for the parties involved to be punished because no one has been harmed, rank hasn't been used unjustly, and force hasn't been used for coercion. However, Article 92 of the Military Criminal Act makes all of this possible. In fact, in 1999, a similar case was punished based on Article 92 of the Military Criminal Act. However, just as consensual sexual acts between members of different sexes aren't seen as "indecent acts," consensual sexual acts between members of the same sex mustn't be seen as "indecent acts." Everyone has a right to sexual self-determination. No one must be discriminated against just because of a different sexual orientation.

Third, the ambiguous regulation in Article 92 of the Military Criminal Act is inappropriate for determining whether an individual is innocent or guilty. It's nearly impossible to understand and accept which acts are forbidden and which aren't from the expression "sodomy and/or other indecent act." In other words, this article can be applied to diverse situations because it completely fails to provide the criteria for judgment including the agent and the other party, types of acts, location of the acts, and consent. Consequently, it becomes difficult accurately to judge the innocence or guilt of the parties involved so that it is very likely for the applier of the law to interpret this article arbitrarily at his or her discretion.


Please fax or mail the petition to:
Network for Reporting the Violation of the Human Rights of Sexual Minorities in Relation to the Military
302 Myodong Building, 183 Myodong, Jongno-gu, Seoul, Korea 110-370
Fax: 82-2-744-7916



http://chingusai.net
tel:02-745-7942
fax:02-744-7916
(Notice: This is a forwarded email to me and I feel the urge of posting it here to have the appropriate response from the readers to abolish these kinds of laws violating the human rights of individuals according to their gender identities Thank you!)

2 comments:

line of flight said...

wow!

Luis Batchoy said...

should be imprisoned for one year or more... to share his knowledge on sodomy and enjoy sexual abandon while there...

yan dapat ang repealing text... kaloka!

 
 
 

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