The Constitutional Court has ruled that a Military Criminal Act provision mandating life imprisonment or a prison term of at least seven years for those who forcibly molest and injure fellow soldiers or military civilian employees does not violate the Constitution. This marks the first time the Constitutional Court has reviewed the constitutionality of the statutory sentence for the crime of forced molestation causing injury committed by military personnel.
According to the legal community on the 26th, the Constitutional Court ruled the provision constitutional on the 23rd by a 7-2 vote, upholding the forced molestation causing injury portion of Article 92-7 of the Military Criminal Act.
The petitioners, who were serving as Navy and Army officers, were indicted on charges of forcibly molesting and injuring a subordinate soldier and a military civilian employee, respectively, and were sentenced to three years and six months in prison. After their motion for a constitutional review of the law was dismissed during the appeal, they filed a constitutional complaint in 2023.
The provision stipulates that anyone who commits the crime of forced molestation defined under the Military Criminal Act and causes injury to a person subject to the act, such as soldiers or military civilian employees, shall be punished by life imprisonment or a prison term of at least seven years.
The Constitutional Court determined that "the provision under review is intended to strictly regulate the crime of forced molestation causing injury that occurs in the military, where strict discipline and a chain-of-command hierarchy are required," adding that "it was established to protect the sexual self-determination and physical safety of individual members from the crime of forced molestation causing injury committed by members of the military organization, and to contribute to establishing military discipline and maintaining combat capability."
The court explained that "the military organization is thoroughly structured by rank, making it highly likely for crimes exploiting the hierarchy to occur, and such crimes can cause serious harm to the preservation of the military's combat capability." It added that "the legislator's decision to set the lower limit of the statutory sentence at seven years or more in prison, thereby precluding a suspended sentence, is acceptable and does not violate the principle of proportionality between responsibility and punishment."
Regarding the argument that the provision violates the principle of equality because it imposes heavier punishment than the crime of forced molestation causing injury under general criminal law (life imprisonment or at least five years in prison), the court did not accept it, stating that "it takes into account the legal status of the subject and object of the act, the special nature of the military organization, and the differences in the legal interests to be protected, and thus has a reasonable basis."
By contrast, Justices Jung Kye-sun and Ma Eun-hyeok dissented. The two justices explained that "although the degree and illegality of forced molestation and injury vary greatly, setting the lower limit at seven years in prison means that even in cases where the harm to military order is minor, a minimum sentence of three years and six months must be imposed even after reduction, which violates the principle of proportionality between punishment and responsibility."
