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Article 92-6 of the Republic of Korea’s Military Criminal Act, the only law that punishes LGBTQ+

  • Writer: 종관 박
    종관 박
  • Oct 16, 2022
  • 5 min read

Among current legislation in Korea, there is a law that punishes citizens on a basis of their sexual orientation. The Korean Military has tracked down and punished LGBTQ+ soldiers based on the law. We will explain why this law is a problem and introduce court rulings associated with it in 2022.


  • English Translation: 피웊

  • Translation review: 동치, Miguel

  • Writer of the original text: Miguel

  • Review and amendments to the original text: 레이

Picture 1. White text that reads “Law of Punishing Homosexuality, Repeal Article 92-6 of the Military Criminal Act!” on a red background. Hashtags at the top left corner that read “Beyond Anger to Abolishment” and “Abolishment to Equality.” (Source: Gunivan, The Network for Reporting Discrimination and Human Rights Violations against LGBTQ+ in Relation to the Military)
Picture 1. White text that reads “Law of Punishing Homosexuality, Repeal Article 92-6 of the Military Criminal Act!” on a red background. Hashtags at the top left corner that read “Beyond Anger to Abolishment” and “Abolishment to Equality.” (Source: Gunivan, The Network for Reporting Discrimination and Human Rights Violations against LGBTQ+ in Relation to the Military)

In Korea, military-related issues such as military conflicts with North Korea and the mandatory military service system are treated as daily and yet important news. We will briefly address the violation of LGBTQ+ rights inside the military based on Article 92-6 of the Military Criminal Act, which is also referred to as the 'Sodomy Law.'


Inside Article 92-6

The Military Criminal Act is a legal device to punish the wrongdoings of soldiers. The law also applies to civilian workers in the military. Among them, Article 92-6 stipulates that “A person who has committed the act of anal intercourse or other harassment shall be punished by imprisonment for up to 2 years.”


The law originally used the term “gye-gan,” an outdated and derogatory expression of sex between men, but the word was changed to “anal intercourse” in 2013.


I see no problem here. Shouldn't all harassment be punished?

In the original Korean text of Article 92-6, harassment is written as “chuhaeng.” The word does not mean sexual violence in the context. “Chuhaeng” means “dirty and filthy behavior” but in the context, similar to “gyegan,” it refers to a sexual act between men. The article is based on the prejudice that homosexual sex is subject to punishment.


Harassments and sexual violence that we generally know as acts of sexual self-determination infringement under coercion are covered by Article 92-3 of the Military Criminal Act and other articles in military law. In addition, through several rulings on Article 92-6, the Military Court stated that the purpose of this provision is to “protect the healthy life and military discipline of the military.” Since the purpose of the article is not to protect soldier's right to sexual self-determination, the military has punished the intercourse between two male soldiers under an agreement that happened outside the military unit.


Has Article 92-6 ever been enforced?

The most well-known case of enforcement of the law is the crackdown on LGBTQ+ soldiers in 2017. Jang Jun-kyu, who served as Chief of Staff of the Republic of Korea Army at the time, ordered to search for “homosexual soldiers” and punish them under Article 92-6, with dozens of soldiers subject to an investigation based on individual sexual orientation without any clear physical evidence. On May 24th, the General Military Court sentenced a soldier to 6 months in prison and a year of probation, taking issue with sexual intercourse agreed upon outside the camp. After that, many more became victims of court rulings.


According to the Army, the investigation was expanded around a soldier who distributed pornography, but civic groups, including the Center for Military Human Rights Korea (CMHRK), said the victims were not guilty of the charges argued by the Army. The Army searched for homosexual soldiers by questioning the identities of other gay soldiers to the suspect. The Army also investigated through dating apps, accompanied by warrantless cell phone forensics, insulting remarks, and threats to outings. This case shows that Article 92-6 is more than a simple legal provision and can be used as a device to systemically suppress LGBTQ+ soldiers.


There are many other cases, including the 2019 Navy LGBTQ+ crackdown, but we will not cover them further in the article.


This case shows that Article 92-6 is more than a simple legal provision and can be used as a device to systemically suppress LGBTQ+ soldiers.

Article 92-6 still can be a legitimate device to punish sexual violence and sexual intercourse in a compound, isn't it?

In 2008, an officer was charged with beating a soldier's genitals, grabbing his nipples and twisting them in front of other soldiers, but was acquitted by the Supreme Court. While Article 92-6 of the Military Criminal Act punishes “homosexual sexual practices and other abnormal sexual satisfaction acts that objectively cause disgust and go against sexual morality,” the Supreme Court saw that the defendant's actions had nothing to do with this. This ruling sparked a campaign to abolish Article 92-6.


In 2010, a male soldier and a female soldier who were sent to Lebanon were suspended and received a salary reduction for sexual intercourse in military units. However, Article 92-6 of the Military Criminal Act was not applied, and the level of punishment was lower than that of Article 92-6, stipulating imprisonment. If the purpose of Article 92-6 were to "protect the healthy life and military discipline of the military," as the military court said, there would have been no reason to ruled different degrees of punishment between heterosexual and homosexual sexual practice among soldiers.


The two cases introduced above are in contrast to the application of Article 92-6 in the suppresion for LGBTQ+ soldiers in 2017. Article 92-6 is used as a tool to discriminate against minority groups based on social prejudice rather than for the purpose of punishing harassment or establishing discipline for sexual violence in the compound.


Wave of change in 2022

Civil society has made steady movements. With the aforementioned Supreme Court ruling in 2008, the movement to abolish Article 92-6 began in earnest, and there was a persistent movement to abolish it through the Constitutional Court. Although the Constitutional Court judged that Article 92-6 was constitutional three times (2002, 2011, and 2016), political circles also proposed legislation to abolish the provisions in 2014 (Jin Sunmee of the Democratic Party) and 2017 (Kim Jong-dae of the Justice Party).


Shortly after the crackdown on LGBTQ+ soldiers in 2017, LGBT groups and civil society filed a petition with the Defense Ministry and held four denunciation rallies in front of the Defense Ministry building. Universities across the country posted slogans saying, “Arrest me as well.” LGBTQ+ groups and human rights groups have since continued to appeal against the court rulings along with the victims and continued their bitter litigation.


And finally, on April 21, 2022, the Supreme Court overturned the conviction of the High Military Court in the case of a victim. The Supreme Court found it difficult to punish same-sex relations under voluntary agreement in private space under Article 92-6. Moreover, the Supreme Court also hinted at the need to revise the law in accordance with the change of the times, saying, “Homosexuality is accepted as one of the natural sexual orientations at home and abroad today.” Since the decision, positive rulings have been made one after another, with the prosecution seeking innocence from the defendant in a case or acquittal in another court. In addition, Jang Hyeyeong (Justice Party) once again proposed the abolition of Article 92-6 of the Military Criminal Act.


There's still a long way ahead. Other victims are still waiting for the court's ruling, and the Constitutional Court is re-pending the unconstitutional law trial on Article 92-6. As it is the only provision in Korea that punishes sexual and gender minorities, we need to keep a close eye on the court and the National Assembly's decision in the future.



  • English Translation: 피웊

  • Translation review: 동치, Miguel

  • Writer of the original text: Miguel

  • Review and amendments to the original text: 레이


References (available in Korean)

1. 장병권(2007.11.01). “[기고] 동성애자 인권 짓밟는 ‘병영 내 관리지침’ / 장병권”. 한겨레. https://www.hani.co.kr/arti/opinion/column/247323.html

2. 김영란 외(2008.05.29). “가혹행위·추행. 대법원 2008. 5. 29. 선고 2008도2222 판결”. 법제처 국가법령정보센터. https://www.law.go.kr/%ED%8C%90%EB%A1%80/(2008%EB%8F%842222)

3. 박효재(2011.12.15). “동성애 이유 병역거부자 첫 해외 망명”. 경향신문. https://m.khan.co.kr/politics/defense-diplomacy/article/201112152116005

4. 허재현(2013.04.24). “군 ‘동성애 처벌법’ 여군에도 적용 추진 “위헌여론 높은데 처벌범위 늘려” 반발”. 한겨레. https://www.hani.co.kr/arti/society/society_general/584470.html

5. 군 관련 성소수자 인권침해‧차별 신고 및 지원을 위한 네트워크 & 성적지향‧성별정체성 법정책연구회(2014.05.21). “제4회 SOGI 콜로키움 군형법과 동성애: 군형법 제92조의6을 둘러싼 동성애 담론과 성소수자의 시민권”. SOGI. https://sogilaw.org/32

6. 군인권센터(2017.04.13). “[보도자료] 장준규 육참총장, 동성애자 군인 색출 및 처벌 지시 관련 긴급 기자회견”. 군인권센터. https://mhrk.org/notice/press-view?id=439

7. 이세아(2017.04.13). ““육군참모총장이 동성애 군인 색출·처벌 지시...전례 없는 인권침해 사태””. 여성신문. http://www.womennews.co.kr/news/articleView.html?idxno=113360

8. 성소수자차별반대 무지개행동, 군 관련 성소수자 인권침해 차별신고 및 지원을 위한 네트워크(2017.04.17). “[긴급 성명]육군 동성애자 군인 색출 수사 피해자 A대위 구속영장발부를 규탄한다! 부당한 성소수자 색출 수사로 구속된 A대위를 즉각 석방하라!”. 행동하는 성소수자 인권연대. https://lgbtpride.or.kr/xe/index.php?mid=anoucement&page=12&document_srl=788315

9. 갈홍식(2017.04.22). “동성애 이유로 구속된 군인, “나도 잡아가라” 촛불 든 시민들”. 비마이너. http://www.beminor.com/news/articleView.html?idxno=10875

10. 박준용(2017.04.28). “군형법상 ‘추행죄’라 쓰고, ‘차별’이라 읽는다”. 시사저널. https://www.sisajournal.com/news/articleView.html?idxno=168326

11. 김경준(2017.05.04). “입대하자마자 "너 성소수자라며"... 나는 사찰 당했다”. 오마이뉴스. http://www.ohmynews.com/NWS_Web/View/at_pg.aspx?CNTN_CD=A0002321955

12. 이세아(2017.05.08). “이곳은 성소수자의 인권이 도난당한 자리입니다”. 여성신문. http://www.womennews.co.kr/news/articleView.html?idxno=114019

13. 군 관련 성소수자 인권 침해․차별 신고 및 지원을 위한 네트워크 & 성소수자차별반대 무지개행동(2017.05.24). “[논평] A대위는 여전히 무죄다”. 행동하는 성소수자 인권연대. https://lgbtpride.or.kr/xe/index.php?mid=anoucement&document_srl=788592

14. 최가영(2017.05.24). “동성애 A대위 처벌, 누군가의 세상은 오늘 무너진다”. YTN. https://www.ytn.co.kr/_ln/0103_201705241814561708

15. 갈홍식(2017.05.24). “군 법원, 동성애자 군인 A 대위에게 유죄 판결”. 비마이너. https://www.beminor.com/news/articleView.html?idxno=10990

16. 천관율(2017.06.07). “A대위의 사랑은 어떻게 범죄가 되었나”. 시사인. https://www.sisain.co.kr/news/articleView.html?idxno=29251

17. 허진무(2017.06.20). “서강대 학생들, 장준규 육군총장에 "동성애 마녀사냥 멈춰라" 기습 시위”. 경향신문. https://m.khan.co.kr/national/national-general/article/201706201010001

18. 오소리(2017.07.07). “2017년 상반기 성소수자 핫이슈 총결산!”. 행동하는 성소수자 인권연대 웹진. https://lgbtpride.tistory.com/1462

19. 이주원(2017.07.13). “[성소수자 난민 정보 시리즈] II. 한국국적 성소수자 난민”. 공익법률센터 어필. https://apil.or.kr/news/550

20. 권영전(2017.09.13). “군인권센터, '군 동성애자 색출 중단촉구' 5만여명 서명지 제출”. 연합뉴스. https://www.yna.co.kr/view/AKR20170913088200004?input=1195m

21. 임재우(2018.02.22). “동성군인 합의 성관계 무죄 판결…“70년 만에 처음””. 한겨레. https://www.hani.co.kr/arti/society/society_general/833340.html

22. 하민지(2018.02.22). “'성소수자 군인 색출'로 기소된 군인 '무죄'”. 뉴스앤조이. https://www.newsnjoy.or.kr/news/articleView.html?idxno=216075

23. 유설희(2018.05.14). “인권위 ‘군 동성애 색출지시' 육군참모총장 의혹 대부분 기각...부실조사 논란”. 경향신문. https://m.khan.co.kr/national/national-general/article/201805141630011

24. 양민철(2019.03.12). “군인권센터 “해군,성소수자 군인 3명 색출…모욕적 수사””. KBS. https://news.kbs.co.kr/news/view.do?ncd=4156027

25. 김미향(2019.06.22). ““원조인 미국도 폐지한 차별법”… 군형법 92조의6을 묻는다”. 한겨레. https://www.hani.co.kr/arti/society/society_general/898898.html

26. 이영경(2019.07.05). “실패해도 결코 절망 않는 ‘퀴어서사’”. 경향신문. https://m.khan.co.kr/culture/book/article/201907052023005

27. 나경희(2019.07.24). “국제앰네스티로 간 군내 성소수자 문제”. 시사인. https://www.sisain.co.kr/news/articleView.html?idxno=35122

28. 김민제(2019.09.18). “[단독] 2년전 ‘육군 성소수자 색출 사건’ 군인들 강제전역 내몰렸다”. 한겨레. https://www.hani.co.kr/arti/society/society_general/909920.html

29. 이혜리(2020.02.20). “동성애 처벌 군형법 92조의6…“기본권 침해” 또 위헌 심판대”. 경향신문. https://m.khan.co.kr/national/court-law/article/202002202139015

30. 황재하(2021.01.31). “법원 "'軍 동성 성추행 수사' 성소수자 색출로 단정 못해"”. 연합뉴스. https://www.yna.co.kr/view/AKR20210129162300004

31. 박고은(2021.09.13). ““군대에선 내 존재, 사랑, 관계 모든 것이 불법이었어요””. 한겨레. https://m.hani.co.kr/arti/society/rights/1011489.html#cb

32. 조해람(2021.09.15). “'성소수자' 밝혀지니 군대는 나를 정신병원에 가뒀다”. 경향신문. https://m.khan.co.kr/national/national-general/article/202109151542001

33. 전광준(2022.04.21). “대법 “동성 군인 ‘합의 성관계’ 처벌 못해”…군형법 판례 바꿨다”. 한겨레. https://www.hani.co.kr/arti/society/society_general/1039867.html?_fr=mt2

34. 임재우(2022.04.21). “74년 전 미군법 따른 ‘성소수자 군인 처벌’, 첫 제동 걸렸다”. 한겨레. https://www.hani.co.kr/arti/society/women/1039930.html

35. 장혜영(2022.04.22). “[보도자료] ‘제92조의6’ 폐지하는 군형법 개정안 발의”. 국회의원 장혜영 홈페이지. http://janghyeyeong.com/20/?q=YToxOntzOjEyOiJrZXl3b3JkX3R5cGUiO3M6MzoiYWxsIjt9&bmode=view&idx=11235576&t=board

36. 한가람(2022.04.24). “14년 만에 바로잡힌 차별과 혐오”. 한겨레. https://www.hani.co.kr/arti/opinion/column/1040174.html

37. 임재우(2022.05.03). ““성소수자 군인 색출, 반인권적” 대법 지적에도 사과 없는 군”. 한겨레. https://m.hani.co.kr/arti/society/women/1041320.html?_fr=fb#cb

38. 신지민(2022.05.07). “동성군인 사랑 ‘추행죄’ 옥죈 군형법…5년 만에 쇠사슬 끊다”. 한겨레. https://www.hani.co.kr/arti/society/society_general/1041879.html

39. 장예지(2022.05.27). “검찰도 잘못 인정…추행 혐의 성소수자 군인에 ‘무죄 구형’, 왜?”. 한겨레. https://www.hani.co.kr/arti/society/society_general/1044694.html

40. 나혜인(2022.06.23). “'동성 군인과 합의한 성관계' 예비역 장교 2심도 무죄”. YTN. https://m.ytn.co.kr/news_view.php?s_mcd=0103&key=202206231337195727&pos=

41. 김정우(2022.08.25). “인권위 "'군형법'상 추행죄, 군인의 성적 자기결정권 침해"”. MBC. https://imnews.imbc.com/news/2022/society/article/6401528_35673.html

42. 안혜민(2022.09.04). “[마부작침] 군대 속 인권, 어디까지 왔을까?”. SBS. https://news.sbs.co.kr/news/endPage.do?news_id=N1006882650


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