WHAT IS THE CRIME OF SEXUAL ASSAULT?
WHAT IS THE CRIME OF SEXUAL ASSAULT?
The crime of sexual assault is regulated in Article 102 of the Turkish Penal Code.
Sexual assault
(1) A person who violates the bodily immunity of another person through sexual acts shall be sentenced to imprisonment from five to ten years, upon the complaint of the victim. If the sexual act remains at the level of molestation, a sentence of imprisonment from two to five years shall be imposed.
(2) In the event that the act is committed by penetrating the body with an organ or another object, a sentence of imprisonment of not less than twelve years shall be imposed. If this act is committed against a spouse, the investigation and prosecution are subject to the complaint of the victim.
(3) If the crime is committed;
a) Against a person who is unable to defend themselves in terms of body or spirit,
b) By abusing the influence provided by a public office, guardianship, or service relationship,
c) Against a person with whom there is a relationship of consanguinity or affinity up to the third degree, or by a stepfather, stepmother, step-sibling, adopter, or adoptee,
d) With a weapon or collectively by more than one person,
e) By taking advantage of the convenience provided by environments where people are forced to live together collectively,
the sentences given according to the above paragraphs shall be increased by half.
(4) If the force and violence resorted to for sexual assault result in the severe consequences of the crime of intentional injury, the provisions regarding the crime of intentional injury shall also be applied.
(5) In the event that the victim enters a vegetative state or dies as a result of the crime, an aggravated life sentence shall be imposed.
The basic form of the crime of sexual assault consists of violating the bodily immunity of a person through sexual acts for the purpose of satisfying sexual desires, by making physical contact with their body.
The crime of sexual assault refers to a violation that constitutes an unjust interference with the sexual immunity of the victim, occurring without their consent and will. If consent exists, the crime of sexual assault does not occur.
The crime of sexual assault is divided into two based on the degree to which the perpetrator violates the victim's bodily immunity:
The crime of simple sexual assault is regulated in Article 102/1 of the TPC: The crime of simple sexual assault is the violation of the victim's bodily immunity through sexual acts. This violation is contact with the victim's body that does not reach the level of sexual intercourse.
The mildest form of the crime of simple sexual assault is also defined as the “crime of molestation.” For example, acts such as kissing someone without consent, making physical contact, or groping are considered simple sexual assault by way of molestation.
The crime of qualified sexual assault is regulated in Article 102/2 of the TPC: The crime of qualified sexual assault is also defined as the “crime of rape.”
Article 102/2 of the TPC regulates a qualified element of the sexual assault crime that requires a heavier penalty related to the act. The realization of this form of the crime depends on the act being committed by penetrating the body with an “organ” or “another object.” In the old TPC numbered 765, this crime was regulated under the title “crime of violation of chastity.”
If this act is committed against a spouse, the investigation and prosecution are subject to the complaint of the victim.
The qualified forms of the crime of sexual assault that require a heavier penalty are as follows;
If the crime is committed;
Against a person who is unable to defend themselves in terms of body or spirit,
By abusing the influence provided by a public office, guardianship, or service relationship,
Against a person with whom there is a relationship of consanguinity or affinity up to the third degree, or by a stepfather, stepmother, step-sibling, adopter, or adoptee,
With a weapon or collectively by more than one person,
By taking advantage of the convenience provided by environments where people are forced to live together collectively,
the sentences imposed are increased by half.
WHAT IS THE CRIME OF SEXUAL HARASSMENT?
The crime of sexual harassment is regulated in Article 105 of the Turkish Penal Code.
Sexual harassment
(1) A person who harasses another person for sexual purposes shall be sentenced to imprisonment from three months to two years or a judicial fine, upon the complaint of the victim; if the act is committed against a child, a sentence of imprisonment from six months to three years shall be imposed.
(2) If the crime is committed;
a) By taking advantage of the convenience provided by a public office, service relationship, or family relationship,
b) By guardians, educators, teachers, caregivers, foster families, or persons providing health services, or by persons with a duty of protection, care, or supervision,
c) By taking advantage of the convenience provided by working at the same workplace,
d) By taking advantage of the convenience provided by postal or electronic communication tools,
e) By exhibitionism,
the penalty to be imposed according to the above paragraph shall be increased by half. If the victim has been forced to quit their job, leave school, or leave their family due to this act, the penalty to be imposed cannot be less than one year.
The value protected in the crime of sexual harassment, which is regulated in the section of the TPC on crimes against sexual immunity, is the sexual immunity and integrity of individuals. The act prohibited by the legislature in this type of crime is to harass someone for sexual purposes.
Various definitions have been made regarding sexual harassment. Sexual harassment is an individual disturbing another individual by targeting their sexuality with their hands, words, eyes, and body without their consent. It is any kind of sexual act directed at the victim's sexuality that is verbal or written, does not contain bodily contact, and is of a disturbing nature. These are sexual behaviors that do not constitute a violation of the victim's bodily immunity.
Behaviors constituting sexual harassment can be carried out verbally (e.g., catcalling with sexual content), in writing (proposing sexual intercourse via message), or through gestures (exposing one's sexual organs). The important point here is that these actions were carried out by targeting the victim. Furthermore, it is not required for the victim to be harmed by the act. For example, the perpetrator singing songs or folk songs to the victim out of lust is sexual harassment. It is not important whether these words have a special meaning or are meaningful. This crime can also be committed via telephone, message, or by interposing a third person. Said behaviors must not have reached the level of sexual assault.
The qualified forms of the crime of sexual harassment that require a heavier penalty are as follows;
If the crime is committed;
By taking advantage of the convenience provided by a public office, service relationship, or family relationship,
By guardians, educators, teachers, caregivers, foster families, or persons providing health services, or by persons with a duty of protection, care, or supervision,
By taking advantage of the convenience provided by working at the same workplace,
By taking advantage of the convenience provided by postal or electronic communication tools,
By exhibitionism,
the penalty to be imposed according to the above paragraph shall be increased by half. If the victim has been forced to quit their job, leave school, or leave their family due to this act, the penalty to be imposed cannot be less than one year.
WHAT IS THE CRIME OF SEXUAL ABUSE OF CHILDREN?
The crime of sexual abuse of children is regulated in Article 103 of the Turkish Penal Code.
Sexual abuse of children
(1) A person who sexually abuses a child shall be sentenced to imprisonment from eight to fifteen years. If the sexual abuse remains at the level of molestation, a sentence of imprisonment from three to eight years shall be imposed. If the victim has not completed the age of twelve, the sentence to be imposed shall not be less than ten years for abuse and five years for molestation. If the perpetrator of the crime that remained at the level of molestation is a child, the investigation and prosecution are subject to the complaint of the victim, their parent, or their guardian.
The term sexual abuse means;
a) Any sexual behavior committed against children who have not completed fifteen years of age or who have completed it but do not have the capacity to perceive the legal meaning and consequences of the act,
b) Sexual behaviors committed against other children only based on force, threat, deception, or another reason that affects the will,
is understood.
(2) In the event that sexual abuse is committed by penetrating the body with an organ or another object, a sentence of imprisonment of not less than sixteen years shall be imposed. If the victim has not completed the age of twelve, the sentence to be imposed cannot be less than eighteen years.
(3) If the crime is committed;
a) Collectively by more than one person,
b) By taking advantage of the convenience provided by environments where people are forced to live together collectively,
c) Against a person with whom there is a relationship of consanguinity or affinity up to the third degree, or by a stepfather, stepmother, step-sibling, or adopter,
d) By guardians, educators, teachers, caregivers, foster families, or persons providing health services, or by persons with a duty of protection, care, or supervision,
e) By abusing the influence provided by a public office or service relationship,
the penalty to be imposed according to the above paragraphs shall be increased by half.
(4) If sexual abuse is committed against children in paragraph (1) clause (a) with force or threat, or against children in clause (b) by using a weapon, the penalty to be imposed according to the above paragraphs shall be increased by half.
(5) If the force and violence resorted to for sexual abuse result in the severe consequences of the crime of intentional injury, the provisions regarding the crime of intentional injury shall also be applied.
(6) In the event that the victim enters a vegetative state or dies as a result of the crime, an aggravated life sentence shall be imposed.
The legal value protected in the crime of sexual abuse of children is the interest of the victim child. In the crime of sexual abuse, the legislature has protected the child both against others and against themselves and has not given credit to their consent so that they are not subjected to sexual behavior. In this type of crime, the child's sexual immunity and mental and bodily integrity are protected.
A child is defined in Article 6/1-a of the TPC as a person who has not yet completed the age of 18.
If a child has not completed 15 years of age or, even if they have, is in a state of not being able to perceive the meaning and consequences of the committed act, any sexual behavior committed against them is considered sexual abuse and has been sanctioned.
The concept of a child is handled in three separate categories in terms of sexual abuse crimes:
Sexual abuse of children who have not completed 15 years of age,
Sexual abuse of children who have completed 15 years of age but do not have the developed capacity to perceive the legal meaning and consequences of the act directed at them,
Sexual abuse of children in the 15-18 age group based only on force, threat, deception, or another reason that affects the will.
The qualified forms of the crime of sexual harassment that require a heavier penalty are as follows;
In the event that sexual abuse is committed by penetrating the body with an organ or another object, a sentence of imprisonment of not less than sixteen years shall be imposed. If the victim has not completed the age of twelve, the penalty to be imposed cannot be less than eighteen years.
The investigation of the crime of sexual abuse is not subject to a complaint; it is carried out ex officio. As a rule, the statute of limitations for the case starts from the date the crime was committed.
WHAT IS THE CRIME OF SEXUAL INTERCOURSE WITH A MINOR?
The crime of sexual intercourse with a minor is regulated in Article 104 of the Turkish Penal Code.
Sexual intercourse with a minor
Article 104- (1) A person who has sexual intercourse with a child who has completed fifteen years of age, without force, threat, or deception, shall be sentenced to imprisonment from two to five years, upon complaint.
(2) If the crime is committed by a person with whom there is a marriage prohibition with the victim, a sentence of imprisonment from ten to fifteen years shall be imposed without the requirement of a complaint.
(3) If the crime is committed by a person who has undertaken the care of the child to be adopted before adoption or who has a duty of protection, care, and supervision within the framework of a foster family relationship, a sentence shall be imposed according to the second paragraph without the requirement of a complaint.
The crime of sexual intercourse with a minor consists of engaging in sexual intercourse on the basis of mutual consent with minors in the 15-18 age group without resorting to force, threat, or deception.
If the victim among the parties who engage in sexual intercourse with their own consent is under 18, the act constitutes a crime for the other party. It is irrelevant whether the perpetrator is over or under 18.
The most important element of the crime of sexual intercourse with a minor is that the victim has given consent with their free will, without being under any influence. If the victim does not have the free will to engage in sexual intercourse (for example, if they engaged in sexual intercourse influenced by the perpetrator's use of deception, threat, and force), the crime of sexual abuse of a child has been committed.
In the crime of sexual intercourse with a minor, the victim must have completed the age of 15 but not completed the age of 18. If the victim's age is under 15, the crime of sexual abuse occurs. Since it is accepted that children under 15 cannot understand the purpose and consequences of the act, it is accepted that children in this age group do not have consent.
Although the victim's age appears to be under 15 in the population registration, if their real age is over 15, a report is requested from the Forensic Medicine Institute to determine bone age.
The investigation of the crime of sexual intercourse with a minor is subject to a complaint. As a rule, the statute of limitations for the case is 8 years from the date the crime was committed. The duty to conduct the trial regarding the crime of sexual intercourse with a minor is performed by the criminal court of first instance.
I wish that you never encounter the types of crimes I have tried to summarize above, either as a perpetrator or as a victim, and I would like to remind you that if you see/hear this type of crime as an eyewitness, you must report it to law enforcement agencies as a civic duty. Wishing you healthy and peaceful days.