Child Sexual Abuse (Turkish Penal Code Article 103)

The crime of child sexual abuse is included in the "Crimes against sexual inviolability" section of the Turkish Penal Code (TCK). It refers to a crime committed against the child's body, provided the victim is within the legally defined age range. The victim in this crime is a child. The concept of a child is defined in the TCK. According to the TCK, a child is understood to be someone who has not reached the age of 18. (TCK 6/1-b)

The crime of sexual abuse against a child occurs when the acts specified in Article 103 of the Turkish Penal Code take place. Abuse means exploitation, taking advantage of, or misusing.

In cases of child sexual abuse, crimes against children are examined under three main headings:

1. If the victim has not completed twelve years of age, (Turkish Penal Code Article 103/1)
2. The act committed against children who have not yet reached the age of fifteen, or who, although having reached that age, lack the capacity to understand the legal meaning and consequences of the act, (Turkish Penal Code 101/1-a)
3. Abuse of other children that is carried out solely through coercion, threat, deception, or another reason affecting their will. (Turkish Penal Code 101/1-b)

Understanding this article requires knowledge of the concepts in Articles 102, 104, and 105 of the Turkish Penal Code.

Sexual Assault: A crime committed by violating a person's bodily integrity through sexual acts. (Turkish Penal Code 102/1)

Sexual intercourse with a minor: This is a crime committed by engaging in sexual intercourse with a child who has reached the age of fifteen, without coercion, deception, or threat. (Turkish Penal Code 104/1)

Sexual Harassment: A crime committed when a person is sexually harassed. (Turkish Penal Code 105/1)

Behind every crime there is a protected legal value. In the crime of sexual abuse against children, the protected legal value is the best interests of the victimized child. In this type of crime, the child's sexual inviolability, mental and physical integrity are protected.[1] Crimes against sexual inviolability also have a legal value that they protect as an overarching category. Although the issue is controversial in the doctrine, the legal value is the protection of sexual freedom.

When we conceptually categorize crimes against sexual inviolability, two concepts emerge:

1. Sexual harassment: These are sexually motivated acts committed through words, writing, or gestures that do not involve physical contact.
2. Sexual Assault: This refers to sexual acts involving physical contact but without the insertion of an organ or other object. If the sexual assault involves the insertion of an object or organ, it is considered aggravated sexual assault. Sexual assaults against children are considered sexual abuse.[2]
3. Child Sexual Abuse: This is the use of a child, who has not yet completed their development, by an adult for sexual arousal or gratification.[3]
4. Sexual Exploitation: This refers to the exploitation of a child's sexuality along with their labor. Child pornography, child sex tourism, and child prostitution are prominent examples.

It is possible to distinguish between simple and aggravated forms of sexual abuse committed against children. According to this distinction:

• Simple Sexual Abuse Crime: This is regulated in Article 103, paragraph 1 of the Turkish Penal Code. The legislator does not consider the child's consent as a worthy factor in sexual acts committed against children. Children do not have the right to control their own sexual lives simply because they are children. For children under fifteen, their consent has no legal effect whatsoever. For those over fifteen, the outcome must be determined on a case-by-case basis, depending on the victim's understanding and evaluation of the sexual abuse.

For a crime to occur, it must fulfill the typicality requirements. The elements of a crime are broken down, making it easier to analyze.

1. Material Element

(i). Act: If the sexual behavior defined above is committed against children without regard to their consent, the act of sexual abuse against children occurs. The article includes some provisions regarding the child's age. If a child has not completed fifteen years of age, or if they have completed fifteen but lack the ability to understand the legal meaning and consequences of the act, the sexual behavior committed against that child constitutes a crime. For other children, acts committed through coercion, deception, threat, or another reason affecting their will constitute sexual abuse.

(ii). Perpetrator: The perpetrator can be any man or woman. They can be of the same or different gender as the child.

(iii). Victim: The victim is a child, taking into account the definition in Article 6/1-b of the Turkish Penal Code.

(iv). Subject: The subject of the crime is the sexual freedom and inviolability of the child who was attacked.

• Aggravating Circumstances:

1. Sexual abuse occurs by inserting an organ or other object into the body (Turkish Penal Code 103/2)

In terms of its material elements;

(i). Act: Sexual abuse is committed by inserting an organ or other object into the body.

(ii). Perpetrator, victim, subject: The perpetrator is the person who committed the act. Anyone can be the perpetrator. The victim is the child. The subject is the sexual freedom and inviolability of the child who was attacked.

1. According to Article 103/3 of the Turkish Penal Code, if the crime is committed by taking advantage of the ease provided by environments where people are forced to live together in groups, the punishment shall be increased by half, depending on the perpetrator's qualifications and the relationship between the perpetrator and the victim.

Similarly, when we look at the other clauses, if the crime is committed against a person with whom there is a blood or marriage relationship up to the third degree, or against a stepfather, stepmother, stepbrother, or adoptive parent, the penalty will be increased by half.

The penalty is increased by half if the crime is committed by a guardian, educator, teacher, caregiver, foster family member, healthcare provider, or any person with a duty of protection, care, or supervision.

Finally, the penalty is increased if the crime is committed by abusing the influence provided by a public office or service relationship.

1. The crime being committed jointly by more than one person (Turkish Penal Code Article 103/3)
2. The crime is committed by using force or threat against children who have not reached the age of 15 or who, although having reached the age of 15, do not have the capacity to understand the legal meaning and consequences of the act (Turkish Penal Code 103/4)

Spiritual Elements

Sexual abuse is a crime committed intentionally. If sexual abuse is committed by inserting an organ or other object into the body, this indicates that the crime was committed intentionally. This crime, which is committed to achieve gratification or by exploiting the fact that the child is a minor, cannot be committed negligently.

The Crime of Child Sexual Abuse in Terms of Specific Forms of the Crime

1. Attempt

Article 35 of the Turkish Penal Code defines attempted crime. According to this article, a person is held liable for attempted crime if they begin to directly execute a crime they intended to commit with suitable actions, but are unable to complete it due to reasons beyond their control.

Both simple sexual assault and aggravated sexual assault are susceptible to attempt. For example, if the perpetrator is unable to complete the act of trying to force the victim to lie on the ground to satisfy his sexual urges because someone arrives, this constitutes an attempt at simple sexual assault.[4] In this case, the perpetrator is punished for attempt. If the perpetrator voluntarily abandons the act or takes a behavior that prevents the consequences of the crime from occurring when he has started the act, he cannot be punished for attempt. Whether the perpetrator achieves sexual satisfaction or not does not change the punishment for the crime.

2. Participation

Anyone can participate in this type of crime.

3. Assembly

According to Article 43 of the Turkish Penal Code, if the same crime is committed against a person multiple times at different times as part of the execution of a decision to commit a crime, the provisions on continuous crimes apply. Here, the legislator acts as if there were only one crime. If other crimes are committed along with sexual abuse, separate crimes are constituted and penalized.

Investigation Procedure and Sanctions

Investigations into sexual abuse crimes are initiated ex officio. The statute of limitations, as defined in Article 66 of the Turkish Penal Code, begins from the date the crime was committed. Simple sexual abuse carries a sentence of three to eight years (Turkish Penal Code 103/1). Aggravated sexual abuse carries a sentence of eight to fifteen years. These crimes are tried in high criminal courts.

Remember that every event and situation is evaluated and a conclusion is reached within its own context. For more detailed information and to manage the process effectively, you can contact our office.

[1] Artuk-Gökçen-Yenidünya, Special Provisions of Criminal Law, Adalet Publishing House, 2011, page 192.

[2] Bilgehan Savaşçı, The Crime of Child Sexual Abuse, Master's Thesis, Ankara, 2010.

[3] Polat, Oğuz, Child Abuse in All Its Dimensions 1, Sekin Publishing House, Ankara, 2007.

[4] Soyaslan, p. 175.