The Constitutional Court on Thursday confirmed the constitutionality of the military criminal act that bans sexual acts between same-sex soldiers, saying such behaviors could weaken the military’s combat capability.

Article 92, Clause 6 of the Military Criminal Act stipulates that a person who commits anal intercourse or “any other indecent act” shall be punished by up to two years in prison.

District courts in Incheon and Suwon requested the court conduct a constitutional review of the Act, saying the phrase “any other indecent act” has room for unconstitutionality due to its ambiguity.

The Constitutional Court ruled the law as constitutional in a 5-4 vote, saying there is a need to punish sexual acts carried out by force or without consent between same-sex soldiers.

“Even if sexual acts were consensual, it carries the risk of causing serious harm to preserve the fighting power of the nation’s armed forces, if committed in the location on duty or during execution of duty.”

The court said the sexual acts could jeopardize the strict system of command or hierarchy of the military, while dismissing the claim that prohibiting such acts among same-sex soldiers, and not among the opposite sex, goes against the principles of equality.

It also rejected the argument that the Act is vague in whether both sexes are subject to punishment and if assault by mutual consent is also prohibited.

Meanwhile, four judges presented a minority opinion, saying the Act uses “abstract, ambiguous and comprehensive terms,” and of them, three judges also voiced that the article “severely limits an individual’s intimate sexual orientation for the sake of pursing military discipline.” (Yonhap)