Victim's Consent
One of the fundamental principles in criminal law is that the act committed must be unlawful. However, in some cases, the unlawfulness of the act may be eliminated if the act occurred with the victim's consent. The Turkish Penal Code (TCK) regulates the victim's consent one of the grounds for lawfulness . Especially in crimes concerning personal rights, the victim's consent has the effect of eliminating criminal liability.
This article will examine in detail the concept of victim consent, its legal basis, limits, Supreme Court decisions, and its place in practice.
The Concept of Victim's Consent and its Legal Basis
Article 26/2 of the Turkish Penal Code defines the victim's consent as follows:
"Consent given by a person regarding a right over which they can freely dispose renders the act lawful."
This provision states that under certain conditions, the victim's consent can render the act decriminalized. However, not every right is subject to consent. For example, a person's consent is not legally valid regarding the right to life.
Elements of Victim's Consent
For the victim's consent to be considered a legal justification, certain elements must be present simultaneously:
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Validity of Consent:
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Consent must be given freely.
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Consent given under duress, threat, deception, or fraud is invalid.
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Consent Given Before or During the Act:
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Consent must exist at the time or before the crime is committed.
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Subsequent consent does not render an act legally valid.
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The person giving consent must have the authority to dispose of their rights
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A person cannot consent to actions that they do not have the power to dispose of (for example, consent to actions that destroy bodily integrity is not valid).
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Subject of Consent:
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Consent applies only to personal rights. In crimes against public order, the victim's consent does not constitute a legal justification.
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Situations Where Consent Is Not Valid
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Acts against the right to life: Even if a person consents to the death of another, this consent does not negate the criminal nature of the act (Turkish Penal Code, Articles 81 and 82).
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Consent of children in sexual offenses: The consent of children under the age of 18 is not legally valid.
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Crimes concerning the public interest: In crimes such as tax evasion or damaging public property, the victim's consent is not relevant.
Examples of areas where the victim's consent was observed
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Medical Intervention: A patient's consent for surgery or treatment constitutes a legal basis for a physician's actions.
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Sports Activities: In contact sports such as boxing and football, the consent of the parties makes acts of injury, within the framework of the rules, legally permissible.
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Cosmetic Surgery: Cosmetic surgeries performed for reasons other than medical necessity do not constitute a crime with the patient's consent.
The Difference Between Victim's Consent and Other Legitimate Grounds for Legality
The victim's consent is based on the will of the rights holder. In this respect, it differs from other grounds for legality such as self-defense, necessity, or the exercise of a right. Other grounds for legality are generally related to the perpetrator's own will or an external necessity.
Consent of the Victim in Light of Supreme Court Decisions
In its rulings evaluating the victim's consent, the Supreme Court generally draws attention to the following points:
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Whether consent was given explicitly or implicitly,
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Whether consent was obtained under duress or deception,
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The scope and limits of consent.
Example Decision:
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2021/2345 E., 2021/6789 K., the 4th Criminal Chamber of the Supreme Court of Appeals ruled that in a case of injury that occurred during a sports competition, the perpetrator should not be punished because the victim had given prior consent to participate in the sport.
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2019/3456 E., 2020/234 K. , the 12th Criminal Chamber of the Supreme Court of Appeals stated that the patient's informed consent in aesthetic surgical operations renders the act lawful.
Proof of the Victim's Consent
The perpetrator does not have to prove the existence of the victim's consent; however, the court will investigate whether consent exists by considering the specific circumstances of the case. Consent forms and written approvals are of great importance, especially in healthcare
Victim's Consent and Removal of Illegality
The victim's consent only negates the unlawfulness of the act; it does not affect whether the act constitutes the material elements of a crime. For example, if an act of wounding is committed with the victim's consent, the act is considered lawful, and the perpetrator is not punished.
Conclusion and Evaluation
In criminal law, the victim's consent is a reflection of an individual's ability to freely dispose of their own rights. However, this consent must not be contrary to the public interest or social order , and must only relate to rights that the individual is free to dispose of.
Supreme Court rulings and practices regard the victim's consent as a significant ground for legality, particularly in health, sports, and private law relationships. However, actions exceeding the limits of consent remain unlawful, and the perpetrator is punished.
In conclusion, Article 26/2 of the Turkish Penal Code holds a significant place in criminal law as a legal regulation that protects individual freedoms but limits them while respecting public order.
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