Sexual violence is defined as “all acts of a sexual nature that violate a person’s sexual autonomy without their consent.” It involves engaging in sexual behaviors with individuals against their will, violating their bodily integrity. Sexual behaviors refer to actions performed with a sexual purpose or intent to satisfy sexual desires. The criminal offenses against sexual autonomy are categorized into four main types in the law: sexual assault, sexual exploitation of children, sexual intercourse with a minor, and sexual harassment.
When distinguishing between different sexual offenses, a simple distinction is made based on whether there is physical contact involved. Offenses involving physical contact give rise to the crimes of “sexual assault” regulated in Article 102 and “sexual exploitation” regulated in Article 103 of the Turkish Penal Code (TCK), while sexual behaviors without physical contact constitute the crime of “sexual harassment” as defined in Article 105 of the TCK.
SEXUAL ASSAULT The characteristic of the crime of sexual assault is the violation of a person’s bodily integrity for the purpose of satisfying sexual desires, against the consent of adult men or women over the age of 18. The basic form of the crime of sexual assault is regulated in the first paragraph of Article 102 of the Turkish Penal Code. The perpetrator who violates a person’s bodily integrity through sexually explicit behavior, upon the complaint of the victim, is punished with imprisonment from five to ten years. If the sexual behavior remains at the level of harassment, a prison sentence of two to five years is imposed.
Acts such as touching or kissing individuals with sexual desires constitute the subject of this crime, and the insertion of body parts or other objects into the body also constitutes this offense. Sexual behaviors without physical contact fall outside the scope of this crime.
Aggravating Circumstances: The second paragraph of Article 102 of the TCK regulates the commission of the act by inserting a body part or other object into the body, which qualifies as an aggravated circumstance, and the perpetrator shall be sentenced to imprisonment for a term not less than twelve years. In cases where the offense is committed against a spouse, the initiation of an investigation and prosecution is subject to the complaint of the victim.
The third, fourth, and fifth paragraphs of Article 102 regulate the aggravated circumstances of the crime of sexual assault. In the third paragraph of the article:
- Against a person who is unable to defend themselves physically or mentally,
- By abusing the authority provided by a public duty, guardianship, or service relationship,
- Against a person within the third-degree blood or affinity relationship, or by a stepfather, stepmother, stepbrother, adoptive parent, or adopted child,
- With a firearm or by multiple individuals acting together,
- By taking advantage of the ease provided by environments where people are required to live together,
if the offense is committed, the punishments given according to the preceding paragraphs are increased by half.
In the fourth paragraph of the article, if violence and coercion used for sexual assault cause serious consequences of intentional injury, the provisions regarding the offense of intentional injury shall also apply.
The last paragraph of Article 102 contains the most severe penalty. In the event that the victim of the offense falls into a vegetative state or dies, aggravated life imprisonment shall be imposed.
SEXUAL EXPLOITATION OF CHILDREN The basic form of the crime of sexual exploitation of children is regulated in the first paragraph of Article 103 of the Turkish Penal Code. The person who sexually exploits a child is punished with imprisonment from eight to fifteen years. If the sexual exploitation remains at the level of harassment, a prison sentence of three to eight years is imposed. In the case where the perpetrator of the offense is a child and the offense remains at the level of harassment, the initiation of an investigation and prosecution is subject to the complaint of the victim, their legal representative, or the social service institution in charge of protection.
Aggravating Circumstances: The second paragraph of Article 103 regulates the commission of the act by inserting a body part or other object into the body, which qualifies as an aggravated circumstance, and the perpetrator shall be sentenced to imprisonment for a term not less than twelve years.
The third paragraph of Article 103 regulates the commission of the act against multiple victims, which qualifies as an aggravated circumstance, and the perpetrator shall be sentenced to imprisonment for a term not less than fifteen years.
The fourth paragraph of the article regulates the commission of the act with the use of coercion or threats, which qualifies as an aggravated circumstance, and the perpetrator shall be sentenced to imprisonment for a term not less than fifteen years.
The fifth paragraph of Article 103 regulates the commission of the act by a group of people, which qualifies as an aggravated circumstance, and the perpetrator shall be sentenced to imprisonment for a term not less than twenty years.
SEXUAL INTERCOURSE WITH A MINOR Sexual intercourse with a minor is regulated in Article 104 of the Turkish Penal Code. According to this article, if a person over the age of eighteen has sexual intercourse with a minor between the ages of fifteen and eighteen, without resorting to force, threats, or any other means that affect the will of the minor, the perpetrator shall be sentenced to imprisonment for a term not exceeding three years.
SEXUAL HARASSMENT The crime of sexual harassment is regulated in Article 105 of the Turkish Penal Code. According to this article, a person who engages in words, acts, or behaviors of a sexual nature that violate the privacy of a person’s private life, without their consent, shall be sentenced to imprisonment for a term of up to three years or to judicial fine. If the offense is committed against a child, the provisions regarding the crime of sexual harassment shall be applied by increasing the minimum and maximum limits of the penalties specified in this article by half.
Sexual harassment is a behavior that involves verbal or written acts, or body movements, aimed at satisfying sexual desires without physical contact with the victim’s body. These behaviors can include whistling, exposing one’s genitals, sending sexually explicit messages through any means of communication, making hand gestures to suggest engaging in sexual activity, or engaging in actions and speech such as undressing. The perpetrator or the victim of the offense can be of different genders or the same gender. The investigation and prosecution of sexual harassment crimes depend on the victim’s complaint.
Qualified Cases: With the amendment made in 2014, qualified forms of sexual harassment have been regulated in five paragraphs in the article. These are:
- By taking advantage of the ease provided by public duty, service relationship, or domestic relationship,
- By persons who are guardians, educators, caregivers, foster families, or provide health services, or have obligations of protection, care, or supervision,
- By taking advantage of the ease provided by working in the same workplace,
- By taking advantage of the ease provided by postal or electronic communication tools,
- By means of exhibition.
These are the circumstances of commission. In these cases, the punishment is increased by half compared to the basic form of the offense. If the victim has had to quit their job, leave school, or separate from their family as a result of this act, the punishment imposed shall not be less than one year.
In criminal proceedings where the principle of freedom of evidence is valid, as in other crimes, any legally obtained evidence can be used to prove the offense committed against sexual integrity. In crimes committed against sexual integrity, biological materials such as blood, hair, semen, saliva, or other materials that qualify as biologically indicative found on the victim or at the scene of the incident are of utmost importance.
Considering the fact that sexual crime perpetrators often prefer secluded areas when committing the crime, if there is no tangible evidence found at the scene that belongs to the suspect or the accused, it is frequently encountered that a conviction decision can be reached based on the victim’s abstract statement alone, and the conviction decision is upheld and finalized by the Court of Cassation.
Unfortunately, it is also a common occurrence for the victim to make false allegations against the suspect or the accused out of a desire for revenge (e.g., in cases where a couple has been in a relationship for some time and the man refuses to marry or wants to break up, the victim accuses the suspect of rape).
At this point, it is crucial for the defense attorney specializing in serious crimes to meticulously cross-examine the aspects of whether the victim’s statements reflect the truth and to what extent during the trial.
In our office located in the İzmit district of Kocaeli province, we provide consultancy and legal representation services in the field of sexual offenses, as well as all other criminal cases, with experienced and specialized criminal defense attorneys.