Crimes Against Sexual Immunity

In this article, we will discuss the crimes against sexual immunity regulated in the Turkish Penal Code No. 5237, addressing the protection of the privacy of the human body. Sexual immunity is violated by sexual behaviors performed forcibly, that is, against individuals' will. Sexual behaviors refer to actions performed with a sexual purpose or to satisfy sexual desires.

Crimes against sexual immunity in the Turkish Penal Code are categorized into four main types:

1.    Sexual Assault,

2.    Sexual Abuse of Children,

3.    Sexual Intercourse with Minors,

4.    Sexual Harassment.

Crimes against sexual immunity are regulated between Articles 102 and 105 of the Turkish Penal Code. The age and personal characteristics of the victim are important in determining the punishment to be applied for these crimes. It is also noteworthy that these crimes often occur in private areas, causing difficulty in proving the incident due to the victim's fear and concern about the incident being revealed.

Sexual Assault (Article 102)

Article 102 of the Turkish Penal Code regulates Sexual Assault as follows:

"Anyone who violates the bodily immunity of a person through sexual behaviors shall be sentenced to imprisonment from five to ten years upon the victim's complaint."

The first sentence of the first paragraph regulates the basic form of the crime. For this crime to be committed, physical contact is necessary. The perpetrator violates the bodily immunity of the victim without their consent to satisfy sexual desires. However, it should be noted that the crime occurs with the existence of an action intended to satisfy sexual desires, not necessarily with the satisfaction of those desires. Thus, sexual assault is a crime of mere action, and a separate result is not sought apart from the action.

The second sentence of the first paragraph regulates the state of "remaining at the level of molestation":

"If the sexual behavior remains at the level of molestation, a prison sentence of two to five years is imposed."

Molestation means performing the assault in a short, sudden, temporary, and superficial manner. The Court of Cassation has exemplified this situation with actions such as whistling, following the victim and making suggestive moves, showing sexual organs, watching the victim's sexual organs, writing multiple love letters, pinching, proposing sexual intercourse with hand-arm signals, etc. However, some of these examples should be considered under the "Sexual Harassment" crime, which is also regulated under crimes against sexual immunity. Cases involving bodily contact are within the scope of molestation, such as momentary touching of the victim's breast, buttocks, or leg.

Molestation performed through bodily contact is a qualified element requiring less punishment in sexual assault or sexual abuse crimes, whereas non-contact behaviors disturbing the person sexually constitute the crime of sexual harassment.

The actions constituting the basic form of the crime do not reach the level of sexual intercourse. Thus, the form and degree of contact with the body for the purpose of satisfying sexual desires without the victim's consent are important in determining the punishment. The qualified form of the crime of sexual assault is regulated in Article 102, paragraph 2 of the Turkish Penal Code:

"If the act is committed by inserting an organ or another object into the body, a prison sentence of no less than twelve years is imposed. If this act is committed against the spouse, the investigation and prosecution are dependent on the complaint of the victim."

The term "organ or other object" used in the article implies that this act can be carried out not only with a sexual organ but also with objects like "fingers, batons, pens, etc."

Article 102, paragraph 3 of the Turkish Penal Code lists the aggravating factors of "sexual assault":

1.    If committed against a person who is physically or mentally incapable of defending themselves,

2.    If committed by abusing the influence provided by a public office, guardianship, or service relationship,

3.    If committed against a person within the third degree of blood or affinity relationship, or by stepfather, stepmother, step-sibling, adoptive parent, or adoptee,

4.    If committed with a weapon or by multiple persons together,

5.    If committed by taking advantage of the facilities provided by communal living environments.

In these cases, the sentences for both simple and qualified assault are increased by half.

Another aggravating factor is regulated in Article 102, paragraph 5 of the Turkish Penal Code:

"If the crime results in the victim entering a vegetative state or death, aggravated life imprisonment is imposed."

Finally, Article 102, paragraph 4 of the Turkish Penal Code regulates the "actual joinder" rule:

"If the force and violence applied for sexual assault cause the severe consequences of intentional injury, the provisions related to intentional injury are additionally applied."

Joinder means the accumulation of crimes. As a rule in criminal law, the perpetrator is given as many sentences as the number of crimes committed. Actual joinder is a general rule for crimes, meaning as many actions as crimes, and as many crimes as sentences.

Sexual Abuse of Children (TCK Article 103)

Crimes against children are regulated under "sexual abuse of children" in Article 103 and "sexual intercourse with minors" in Article 104 of the Turkish Penal Code.

Under the "Definitions" heading of Article 6 of the Turkish Penal Code, it is stated that the term "child" refers to a person who has not yet reached the age of eighteen.

Understanding the conceptual framework of the crime is important to avoid confusion with other crimes regulated under the heading of sexual immunity. Since the victim's consent is not considered in the crime of sexual abuse of children, it should not be confused with the crime of sexual assault or sexual intercourse with minors; consent does not remove criminal liability in the crime of sexual abuse of children.

Article 103, paragraph 1 of the Turkish Penal Code clarifies what should be understood from the term "sexual abuse":

"Sexual abuse includes;

a)    Any sexual behavior performed against children who have not completed the age of fifteen or who have completed it but lack the ability to understand the legal meaning and consequences of the act,

b)    Sexual behaviors performed against other children only through force, threat, deceit, or another reason affecting the will.

First, the article regulates the penal sanctions for the crime of simple sexual abuse, which remains at the level of non-insertion of an organ or other object into the body.

It is also regulated that the perpetrator will receive a lesser sentence if the sexual behaviors remain at the level of molestation. The situation of remaining at the level of molestation needs to be considered based on the concrete case, but as we explained above, the area of the body targeted, the number and frequency of contact, the duration and severity of the act should be considered.

The fact that the victim is under twelve years old is also an aggravating factor for the penalties to be imposed.

Article 103, paragraph 2 of the Turkish Penal Code regulates the act of "qualified sexual abuse of a child":

"If the sexual abuse is committed by inserting an organ or another object into the body, a prison sentence of not less than sixteen years is imposed. If the victim is under twelve years old, the sentence cannot be less than eighteen years."

This indicates that for qualified sexual abuse to be considered, the act of inserting an organ or another object into the body does not need to be aimed at satisfying sexual desires.

The heavier penalties for the crime of sexual abuse and the joinder of different crimes resulting from the acts that constitute this crime are regulated in paragraphs 3, 4, and 5 of Article 103 of the Turkish Penal Code.

The situation where the crime of sexual abuse remains at the level of molestation and the perpetrator is a child under twelve years old is subject to the victim, guardian, or custodian's complaint.

"If the perpetrator of the molestation is a child, the investigation and prosecution are dependent on the complaint of the victim, their guardian, or custodian."

Sexual Intercourse with Minors (TCK Article 104)

Article 104 of the Turkish Penal Code regulates Sexual Intercourse with Minors as follows:

"Anyone who has sexual intercourse with a child over the age of fifteen without force, threat, or deceit, upon complaint, shall be sentenced to imprisonment from two to five years."

If a person engages in consensual sexual intercourse with a minor aged 15-18, the act will constitute a crime as the victim is under eighteen.

The crime of sexual intercourse with minors is a crime subject to complaint. The complaint by the minor's guardian or custodian alone is not sufficient; the minor must personally file the complaint. The minor must use the right to complain within six months from the commission of the crime.

Sexual Harassment (TCK Article 105)

Article 105 of the Turkish Penal Code regulates Sexual Harassment as follows:

"Anyone who sexually harasses a person for sexual purposes shall be sentenced to imprisonment from three months to two years or a judicial fine, upon the victim's complaint. If the act is committed against a child, the sentence is imprisonment from six months to three years."

The perpetrator sexually harasses the victim without bodily contact, disturbing them to satisfy sexual desires, thus constituting the crime of sexual harassment. This crime can be committed through words, behaviors, signs, sending messages, voice recordings, letters, emails, or social media.

The General Assembly of the Court of Cassation defined it in its decision dated 22.04.2021, 2019/170 E., 2021/166 K., as follows:

"The rationale of Article 105 of the Turkish Penal Code No. 5237, which regulates the crime of sexual harassment, considers sexual harassment as sexual behaviors that do not violate bodily integrity. Sexual harassment consists of disturbing the victim in a manner contrary to sexual morality. In the crime of sexual harassment, there is no act by the perpetrator aimed at the bodily integrity of the victim. The act can be committed verbally or through the perpetrator's own actions."

Proving sexual harassment in the judicial process is difficult. Evidence such as the victim's consistent and non-contradictory statements, witness testimonies, examination of phone records, messages, social media, and digital applications, and e-detection can be used to prove the crime.

Article 105 of the Turkish Penal Code regulates the simple and qualified forms of the crime. The qualified form of the crime requires heavier penalties.

The simple form of the crime of sexual harassment is subject to complaint, but the qualified forms are not; they are investigated ex officio by the prosecution.

Frequently Asked Questions

Are sexual crimes subject to complaint?

In our legal system, crimes are generally investigated and prosecuted ex officio. However, for some crimes, the investigation and prosecution require the complaint of the victim. Additionally, if the victim is a minor, their legal representative must exercise the right to complain. As explained above, sexual crimes are diverse. Therefore, it cannot be generalized that all are subject to complaint or not; these matters are regulated by law.

Are crimes against sexual immunity subject to reconciliation?

No, even if the investigation and prosecution are subject to complaint, reconciliation is not applied in crimes against sexual immunity.

Can HAGB be applied to crimes against sexual immunity?

HAGB stands for the deferral of the announcement of the verdict. It means that if the defendant does not commit an intentional crime and complies with obligations for a certain period after the trial, the decision is annulled. For HAGB to be applied, the sentenced penalty must be two years or less imprisonment or a judicial fine. If the conditions are met, HAGB can be applied to some crimes against sexual immunity.

How is incarceration calculated for sexual crimes?

In addition to the sentence for the crime of sexual assault, another important issue is how long the convicted person will stay in prison. This evaluation, which falls under the execution regime, shows differences between the imposed sentence and the actual time spent in prison. Therefore, it is evaluated based on the concrete case.

Is there a statute of limitations for sexual crimes?

Article 66 of the Turkish Penal Code regulates the "Statute of Limitations" periods, and there is no common statute of limitations period for all sexual crimes. Different criminal sanctions are imposed depending on the age of the victim and the perpetrator and the nature of the crime, and the statute of limitations is determined based on these circumstances. There are also specific situations regulated where the statute of limitations does not apply to certain crimes.