Supreme Court Clarifies Sex Offender Treatment for Military Personnel
The Supreme Court has ruled that while active-duty military personnel are generally not subject to mandatory sex offender treatment programs, exceptions can be made if they lose their military status due to a conviction.
Case Background
This landmark decision stems from the case of an individual identified as Mr. A, who was convicted of sexually assaulting the wife of a junior military officer. Mr. A, a former deputy adjutant, was charged with the offense in 2020. Investigations revealed that the assault occurred at the junior officer’s home while Mr. A was consuming alcohol with the officer and other military colleagues. Mr. A denied the allegations, but lower courts found the victim’s testimony credible and consequently ordered him to undergo treatment.
Legal Interpretation and the Military Exception
The core of the legal dispute centered on whether Mr. A could be simultaneously ordered to pay a fine and undergo sex offender treatment. The Law on the Punishment of Sex Crimes stipulates that courts must order treatment for convicted sex offenders unless there are exceptional circumstances. However, a specific provision within the Protection Surveillance Act exempts active-duty military personnel from such measures.
This exemption is based on the rationale that military commanders’ authority needs protection and that implementing surveillance, community service, or mandatory treatment for active personnel presents practical difficulties.
Lower Court Ruling and Supreme Court Intervention
Consequently, the initial courts imposed an 8 million won fine on Mr. A but did not mandate treatment, operating under the principle that sex offender treatment orders cannot be issued to individuals subject to military law.
The Supreme Court, however, highlighted a critical detail: Mr. A would lose his military status upon confirmation of the conviction. Under the old military law, receiving a fine exceeding 1 million won for a sex offense resulted in the loss of active-duty status.
Supreme Court’s Final Verdict
The Supreme Court stated, “If the lower court’s ruling, which imposed an 8 million won fine for sexual assault, is confirmed, the defendant will naturally lose his active-duty military status. Therefore, the situation where the defendant is subject to military law at the time of the lower court’s ruling cannot be considered an ‘exceptional circumstance’ under the Law on the Punishment of Sex Crimes that would prevent the issuance of a treatment order.”
Essentially, the court ruled that if a conviction is confirmed and results in the loss of military status, a treatment order can be issued even if the individual was subject to military law at the time of sentencing.
The Supreme Court further emphasized that if a treatment order, which should be issued concurrently with a lower court’s ruling, is omitted due to illegality, the entire ruling must be invalidated. The case has been remanded to the Seoul High Court for reconsideration and retrial.
