SELF
The crime of child sexual abuse is regulated in Article 103 of the Turkish Penal Code, within the sixth section titled “Crimes Against Sexual Inviolability.” This study first examines the legal value protected by this crime, then examines its material and moral elements, and its legality, along with discussions in doctrine and Supreme Court decisions. Subsequently, the aggravated forms of the crime and important issues related to culpability are examined. The basic and aggravated forms of the crime—attempt, participation, concurrence, and voluntary abandonment—are then addressed. Finally, issues related to sanctions, the court, the statute of limitations, and execution are evaluated. Issues related to the crime of sexual abuse are evaluated, taking into account doctrine and Supreme Court decisions.
Keywords:Sexual Immunity, Sexual Abuse, Child, Aggravated Sexual Abuse, Harassment
ENTRANCE
The crime of sexual abuse, which falls under the heading “crimes against sexual immunity” of the Turkish Penal Code, is regulated in Article 103, following the crime of sexual assault in Article 102. First, the legal value protected by the crime of abuse is examined. Subsequently, the fundamental elements, material and moral elements, and the element of unlawfulness are addressed. Under the heading of the material element, the specific issue of the crime of sexual abuse, including the victim, the act, and the perpetrator, are examined. Under the heading of the moral element, explanations are provided regarding whether intent, or whether a purpose other than intent, such as gratifying sexual desires, is required for this type of crime. Finally, the element of unlawfulness, one of the fundamental elements of the crime, is evaluated.
Following the basic elements of the crime, the qualifying elements and culpability are discussed. Under the heading of culpability, the circumstances affecting culpability that are significant for the crime of sexual abuse are evaluated. The topics of attempt and voluntary renunciation, participation, and aggregation are then addressed.
I. GENERAL INFORMATION
The crime of sexual abuse of children is included in the Turkish Penal Code (TCK) Article 103. TCK Article 103/1;
“Anyone who sexually abuses a child shall be punished with imprisonment of eight to fifteen years. If the sexual abuse remains at the level of harassment, the sentence shall be imprisonment of three to eight years. If the victim is under twelve years of age, the sentence shall not be less than ten years for abuse, and five years for harassment. If the perpetrator of a crime that remains at the level of harassment is a child, investigation and prosecution shall depend on the complaint of the victim, their parent, or guardian. The term sexual abuse shall mean: a) All sexual acts committed against children who are under fifteen years of age or who have completed fifteen years of age but have not yet developed the ability to comprehend the legal meaning and consequences of the act. b) Sexual acts committed against other children solely based on force, threat, deception, or any other reason affecting the will. The following paragraphs of the same article describe the qualified forms of sexual abuse and the aggravated forms due to the consequences.
II. PROTECTED LEGAL VALUE
The legal values protected by the crime of sexual abuse are sexual immunity, public morality, and family order. Furthermore, it is stated that the aim is to protect the child’s sexual freedom, their right to healthy sexual development and health, and their right and freedom from abuse.
As a result, the legal value protected by this crime, which is regulated under the title of “crimes against sexual immunity” in the Turkish Penal Code, is the child’s sexual immunity and mental and physical integrity.
III. BASIC ELEMENTS OF THE CRIME
A. MATERIAL ELEMENTS
1. SUBJECT AND VICTIM
The subject of the crime of sexual abuse is the child’s body. The victim of this crime is a child under the age of 18 who is being abused. The child’s gender is irrelevant to the crime.
The Turkish Penal Code (TCK) distinguishes between age groups for the crime of sexual abuse. Accordingly, victims are divided into two groups under this crime. The first group consists of children who are under 15 years of age or over but lack the ability to comprehend the legal implications and consequences of the act (discerning children with underdeveloped perceptive skills). The second group consists of children who are over 15 years of age and have developed perceptive skills.
According to Article 6 of the Turkish Penal Code, a child is a person who has not yet reached the age of 18. A person who has attained adulthood through marriage or court order may also be a victim of this crime if they have not yet reached the age of 18. Consequently, a child’s marital status is irrelevant to their status as a victim of this crime. Indeed, the Supreme Court of Appeals appears to have adopted this approach. (Supreme Court 14 CD, E 2016/993, K 2019/13661, 26.12.2019)
Another point of contention concerns the crime committed between spouses. The basic form of sexual abuse, with one exception (molestation between children), is not subject to a complaint. While aggravated sexual assault between spouses is subject to a complaint, if sexual abuse occurs between spouses, prosecution is ex officio.
One view in the doctrine argues that a special regulation should be made for married children and that in the case of an official marriage relationship, TCK Article 102 should be applied.
Another view argues that a two-fold distinction must be made on this matter. According to this view, if the sexual act was committed through force, threat, fraud, or another factor affecting the will, the crime of sexual abuse will be considered. If the sexual act was not committed through force, threat, fraud, or another factor affecting the will, the crime of sexual abuse will not be considered. Consensual intercourse with a child over 15 years of age constitutes the crime of sexual intercourse with a minor.
2. MOVEMENT
The act of sexual abuse is the sexual exploitation of a child. The term “sexual abuse” varies in the law depending on the child’s age. (First Group) All sexual acts committed against children under 15 years of age, or who have completed the act but are unable to grasp the legal implications and consequences of the act (underdeveloped perceptive capacity, discerning); (Second Group) Sexual acts committed against children over 15 years of age and with developed perceptive capacity, based on force, threat, deception, or any other reason that affects the will, constitute the act element of this crime.
Any sexual act committed against children in the first group constitutes this crime, even if the act is committed with the child’s consent. Sexual abuse committed against children in the first group through force, threats, deception, or any other act that influences their will constitutes the aggravated form of sexual abuse.
Sexual behaviors against the second group of children that are not based on force, threat, fraud, or a reason affecting the will do not constitute the crime of sexual abuse.
Another issue is whether sexual behavior against a child necessitates a violation of the child’s physical integrity. Unlike Article 102 of the Turkish Penal Code, the crime of sexual abuse does not require a violation of physical integrity in the text of the article. According to the dominant view, the distinction between the crime of sexual abuse and sexual harassment is the requirement for physical contact in sexual abuse. The Supreme Court of Appeals does not consider acts that do not involve physical contact to be considered sexual abuse. (Supreme Court 5 CD,E 2011/2804 K 2011/3503 April 27, 2011) According to the minority view, any sexual behavior against a child constitutes the crime of sexual abuse. According to this view, behavior against a child that does not involve physical contact also constitutes the crime of sexual abuse.
It is argued that this crime, which can be committed through an act of commission, can also be committed through negligence. An example would be the perpetrator using threats or force to force the victim to engage in sexual acts against them. In this case, the person who forces a child to engage in sexual acts on their own body would be liable for the crime of sexual abuse.
The crime of sexual abuse is a crime of abstract danger, requiring no concrete danger or harm. Furthermore, the crime of sexual abuse is a crime of pure action, requiring no consequences.
3. PERPETRATOR
Because this crime doesn’t require any specific specificity regarding the perpetrator, the perpetrator can be male, female, child, or any adult. The fact that the perpetrator is a child will infer culpability. The perpetrator and victim may be of the same or different genders. In cases where the perpetrator of a crime that has reached the level of harassment is a child, investigation and prosecution are subject to a complaint from the victim, their parent, or guardian.
The perpetrator is a person related by blood or in-law relationship up to the third degree, or a stepfather, stepfather
mother, step-sibling or adoptive parent (TCK art. 103/3-c), guardian, educator, tutor, caregiver, foster family or
providing health services or having an obligation to protect, care or supervise (TCK art. 103/3-d),
A person who abuses the influence provided by public office or employment relationship (TCK Art. 103/3-e)
There will be a qualified situation that requires a higher penalty due to the perpetrator.
B. SPIRITUAL ELEMENTS
Sexual abuse is a crime that can be committed intentionally. It can be committed with direct or potential intent. It cannot be committed through negligence. For this type of crime, no motive other than the perpetrator’s intent is required. There are those in the doctrine who hold the opposite view. According to this view, in addition to intent, the crime of sexual abuse requires the intent to satisfy sexual desires.
Intent must cover the material elements of the crime.
Mistake regarding the elements of the crime type will eliminate intent. In cases of error that precludes intent, liability for negligence will not apply. This is because this crime cannot be committed through negligence.
C. UNLAWFULNESS ELEMENT
Physical examination of the suspect or defendant and taking samples from their body as regulated in CMK article 75
enforcement of the decision, enforcement of the law and execution of the order within the scope of legality
assessable.
The legal nature of consent in this type of crime is debatable. One view is that consent is a ground for legality, while another view argues that consent removes typicality.
For children in the first group, consent is not accepted. For children in the first group, consent does not prevent the occurrence of the crime. For children in the second group, however, consent is valid. If the child in the second group consents to sexual intercourse, the crime of sexual abuse no longer exists. The crime that will now be constituted is the crime of sexual intercourse with a minor. This crime is also regulated in Article 104 of the Turkish Penal Code.
IV. QUALIFIED ELEMENTS OF THE CRIME
Qualifying elements are circumstances that require a greater or lesser penalty for the perpetrator. Qualifying elements relate to the material elements of the crime and must be within the scope of intent.
1-) Sexual Behavior Remaining at the Level of Harassment (TCK 103/1)
In the crime of sexual abuse, sexual behavior that remains at the level of molestation is a lesser penalty. Sexual behavior that violates bodily integrity in a non-continuous, intermittent manner should be considered molestation. If the act persists without interruption, liability for the underlying form of the crime will arise, not molestation.
If the victim is under 12 years of age, the sentence for harassment cannot be less than five years. Furthermore, if the perpetrator of a sexual abuse crime that has reached the level of harassment is a child, investigation and prosecution are subject to a complaint from the victim, their parent, or guardian.
2-) Inserting an Organ or Other Object into the Body (TCK 103/2)
The crime of sexual abuse committed by inserting an organ or other object into the body is a more severe form of punishment. If the victim resists or, for some other reason, insertion of an organ or other object is not possible, the person will be punished for attempting to commit this act. Those who hold the opposite view argue that attempting to commit this act cannot be punished. Those who accept this view believe the perpetrator should be punished for the basic nature of the crime.
Those who hold the opposite view view the commission of this crime by inserting an organ or other object into the body as a separate crime from the basic crime. Therefore, they argue that attempting to commit aggravated assault cannot exist.
For aggravated assault to occur, the act of inserting an organ (hand, finger, etc.) or other object (baton, pen, etc.) is required. These objects do not have to be inserted solely anal, vaginal, or oral. The aggravated assault can be committed by inserting an organ or other object into any bodily cavity suitable for insertion.
If the perpetrator facilitates the insertion of an organ or other object into the perpetrator’s body, the perpetrator will be liable for the primary form of the crime. One view in the doctrine holds that the perpetrator will be liable for the aggravated form of the crime as an indirect perpetrator.
On the other hand, the act of insertion must be sexual in nature. Inserting a cotton swab into the ear for cleaning would not constitute this qualified act because it is not sexual in nature.
3-) The victim must be under 12 years of age (TCK 103/1 – TCK 103/2)
With Article 13 of Law No. 6763 dated 24/11/2016, sentence 103/1-3, sentence 103/2-2 are as follows:
edited:“If the victim has not completed the age of twelve, the penalty to be given is abuse.
“In the case of sexual abuse, it cannot be less than ten years, in the case of harassment, it cannot be less than five years”, “in the case of sexual abuse, it cannot be less than
If it is done by inserting an organ or other object into the body, “the victim is under twelve years of age”
If he has not completed his term, the sentence cannot be less than eighteen years.
4-) Committed against a person with whom the person is related by blood or in-laws, including the third degree, or by a stepfather, stepmother, step-sibling or adoptive parent (TCK 103/3-c)
The crime of sexual abuse is committed by a person who is related by blood or in-law, including the third degree.
The case of being committed against a person is a qualified case that requires more punishment.
5-) Force or Threat Against the First Group of Children (TCK 103/4)
Force or threat is not required for the crime of sexual abuse against children in the first group. Any sexual act committed against these children would already constitute the crime of sexual abuse. If the crime is committed against children in the first group using force or threats, the crime of sexual abuse would be aggravated, requiring a more severe penalty. For the basic form of the crime to be established against children in the second group, force or threat must be used during the sexual abuse. Indeed, the force and threat required for the basic form of the crime would constitute the basic form, not the aggravated form.
6-) Using a Weapon Against the Second Group of Children (TCK 103/4)
In this particular case, the use of a weapon emboldens the perpetrator, making the act easier to commit and breaking the victim’s resistance. By utilizing the weapon’s intimidating effect, the victim’s resistance to the act is diminished. A weapon can be used as a tool of force or threat, or it can be used simply to manipulate the victim. Therefore, it is accepted that the weapon does not need to be fired or pointed at the victim. In this scenario, the aggravated assault would also apply.
7-) Abuse of Influence Conferred by Public Office or Service Relationship (TCK 103/3-e)
Committing the crime of sexual abuse by abusing the influence provided by public office or employment relationship is a more severe case requiring punishment.
😎 Benefiting from the Convenience Provided by the Compulsory Community Living Environment (TCK 103/3-b)
The crime of sexual abuse is more punishable when it is committed by taking advantage of the convenience provided by environments where people are forced to live together. Examples of such places include hospitals, prisons, and dormitories.
9-) Entering a Vegetative State or Death (TCK 103/6)
Sexual abuse that causes the victim to enter a vegetative state or die is considered an aggravated condition due to the consequences. To be held liable for aggravated consequences, the perpetrator must have acted with minimal negligence.
If the perpetrator has the intention to enter a vegetative state or cause death, he will be liable for the crime of aggravated intentional injury or intentional homicide and the basic form of sexual abuse.
If the victim is killed after the crime of sexual abuse has been committed, either to conceal the crime or out of anger or rage, we can no longer speak of aggravated sexual abuse due to the consequences. In this case, the perpetrator will be liable for the crime of aggravated premeditated murder.
10-) The perpetrator is a guardian, educator, instructor, caregiver, foster family or a person who provides health services or has an obligation to protect, care or supervise (TCK 103/3-d)
11-) Joint Processing by More than One Person (TCK 103/3-a)
Sexual abuse committed by more than one person is a qualified case that requires more punishment.
V. FAULT
If the perpetrator of sexual abuse is a child, the extent of minor age must be taken into account as a factor in determining culpability. The Turkish Penal Code (TCK) categorizes minor age into three categories. Children who were under 12 years of age at the time of the act are not criminally responsible. For individuals who were over 12 but under 15 years of age at the time of the act, the assessment should be made as to whether they understood the legal implications and consequences of the act and whether they had sufficiently developed the ability to manage their own behavior. For individuals who were over 15 but under 18 years of age at the time of the act, the sentence will be reduced.
Other general factors affecting culpability may also be considered in the crime of sexual abuse (force, threat, mental illness, etc.).
VI. SPECIAL APPEARANCE FORMS
A-) ATTEMPT AND VOLUNTARY WAIVERS
The basic form of sexual abuse involves sexual acts involving physical contact that attain a certain intensity and continuity. Sexual abuse, which falls within the level of molestation, and carries a lesser penalty, is committed with a sudden and abrupt movement. In cases of insertion of an organ or other object, which carries a more severe penalty, the crime is committed by inserting the object into the body.
If the perpetrator initiated the necessary actions to commit the crime but was unable to complete it due to circumstances beyond their control, they will be liable for attempted sexual abuse and a reduced sentence will be applied. Some authors argue that attempted sexual abuse, which remains at the level of harassment, is not applicable to this type of crime.
On the other hand, the perpetrator who voluntarily gives up the execution of the crime of sexual abuse after starting the execution actions or who prevents the completion of the crime with his own efforts is not punished for attempted crime.
According to the view mostly accepted in the doctrine, if the crime of sexual abuse is committed by inserting an organ or other object into the body, which is a qualified form, the crime will be punished according to the basic form of sexual abuse committed until then, since it is not possible to attempt such a crime.
B-) PARTICIPATION
The person who commits the act of sexual abuse is the perpetrator of the crime. The act of sexual abuse committed by more than one person is considered a more severe offense, requiring more severe penalties. When more than one person commits the crime together, joint perpetration occurs.
Since the crime of sexual abuse is one of the crimes that can be committed personally, indirect perpetration and liability cannot be determined for this type of crime.
It is possible to participate in a crime as an accomplice, in other words, as an instigator or aider.
C-) GATHERING
There is a general norm – special norm relationship between the basic form and qualified cases of sexual abuse, apparently from the principles of socialization, and in this case, only the special norm will be applied.
If the behavior that begins with harassment later becomes more intense and continuous, the person will only be held responsible for the basic form of the crime of sexual abuse.
If the crime of sexual abuse is committed against the same person based on a decision to commit the same crime at different times, the provisions on consecutive crimes may be applied.
If the act constituting sexual abuse occurs consecutively without any time interval, and there is more than one sexual act occurring at the same time with the same intent, there is only one crime.
If the crime of sexual abuse is committed multiple times against a person under the age of 15 and the abuse continues after the victim turns 15, the victim will be liable for the crime of chain abuse if they do not consent to these acts. If they do consent, they will be liable for both the crime of chain sexual abuse and the crime of chain sexual intercourse with a minor.
Committing the crime of deprivation of liberty for “sexual purposes” constitutes the aggravated form of this crime. In this case, if the acts of sexual abuse are committed, punishment for both the aggravated form of deprivation of liberty and the crime of sexual abuse will be applicable. Importantly, deprivation of liberty does not arise as a natural consequence of the crime of sexual abuse.
If another crime (e.g. threat, restriction of liberty, injury) was committed along with sexual abuse:
Each crime is punished separately. (Real concurrence)
Sample Supreme Court Decision:
Supreme Court 14th CD, 2020/7890 E., 2021/1234 K.
| “…The defendant was sentenced separately for forcing the victim to a place (depriving the person of liberty) and for sexually abusing her there…” |
If the perpetrator commits the crime of sexual abuse against different victims, separate punishments are given for each victim.
Sample Supreme Court Decision:
Supreme Court 14th CD, 2018/4567 E., 2019/2345 K.
| “…The defendant’s sexual abuse of two different children on the same day was considered a separate crime for each victim…” |
If more than one act of sexual abuse is committed against the same victim, at different times and with the same decision to commit the crime, a chain crime occurs.
Conclusion:A single penalty is given, but the penalty is increased by 1/4 to 3/4.
Sample Supreme Court Decision:
Supreme Court of Appeals 14th Criminal Chamber, 2019/1234 E., 2020/5678 K.
| “…It was stated that the defendant committed sexual abuse against the victim child on different dates, that each act constituted a crime on its own, but that the provisions for consecutive crimes should be applied because they were committed against the same victim…” |
Intellectual Community (TCK Art. 44)
If more than one different crime occurs with a single act, the crime that requires the heaviest penalty is sentenced.
Example:In cases where the act of sexual abuse also constitutes the crime of obscenity, the most severe penalty is applied.
Attempt (TCK Art. 35) and Assembly
If the sexual abuse remains at the stage of attempt (for example, if the victim resists and the act is not completed), the provisions of attempt apply, but the rule of conjunction is evaluated separately according to the act.
VII. SANCTION – PUNISHMENT OF THE CRIME
If the abuse remains at the level of harassment, a prison sentence of three to six years is foreseen, and if the basic form of the crime is committed, a prison sentence of six to fifteen years is foreseen. However, if the abuse is committed by inserting an organ or other object into the body, a prison sentence of not less than sixteen years will be imposed.
In cases where the crime of sexual abuse requires a more severe penalty, as stipulated in Articles 103/3 and 4 of the Turkish Penal Code, the sentence will be increased by half. If the sexual abuse causes the victim to enter a vegetative state or die, the sentence will be aggravated life imprisonment.
If the victim is under twelve years of age, the sentence to be given cannot be less than five years if the sexual abuse remains at the level of harassment; if the basic form of abuse occurs, the sentence cannot be less than ten years; and if the abuse is committed by inserting an organ or other object into the body, the sentence cannot be less than eighteen years.
For those sentenced to imprisonment for the crime of child sexual abuse defined in TCK Article 103, one or more of the following treatment or obligations will be decided by the execution judge during the execution of the sentence and during the supervision period if they are conditionally released: a) To be subject to medical treatment, b) To participate in treatment programs, c) To be banned from residing in the residential area where the victim of the crime lives and works, d) To be banned from approaching the places where the victim is, e) To be banned from working in an environment that requires being with children, f) To be banned from performing activities that require the obligation of care and supervision of children.
VIII. JUDGMENT
Sexual abuse is a crime that is not subject to a complaint but is investigated and prosecuted ex officio. Sexual abuse, which falls at the level of harassment, is also investigated and prosecuted ex officio, but the situation is particularly significant when the perpetrator is a child. In such cases, investigation and prosecution are contingent upon the complaint of the victim, their parent, or guardian.
Because the right to file a complaint is granted to multiple individuals, conflicting wills in the event of a complaint being withdrawn or withdrawn creates a controversial situation. The right to file a complaint, a strictly personal right, may conflict with the will of the victim and the parent or guardian. In such cases, it is widely accepted that the will of the victimized child should prevail.
A complaint by any of those entitled to file a complaint is sufficient for the prosecution of the crime. A complaint by the victimized child or their parent or guardian is sufficient. If the victimized child has exercised their right to file a complaint but the parent or guardian has not, then the victimized child may waive their right to file a complaint. The will of others to do so is not required.
IX. STATUTE OF LIMITATIONS FOR ACTIONS (TCK 66) – REASONS THAT INTERRUPT THE STATUTE OF LIMITATIONS FOR ACTIONS (TCK 67)
The statute of limitations for a lawsuit is 15 years, based on the basic nature of the crime, pursuant to Article 66/1-e of the Turkish Penal Code. According to Article 66/3 of the Turkish Penal Code, aggravated circumstances of sexual abuse that warrant a heavier penalty must be considered. Therefore, if the specific case presents aggravated circumstances of sexual abuse that warrant a heavier penalty, the statute of limitations for the lawsuit will be 15 years.
However, according to TCK Article 66/6, the statute of limitations for crimes committed against children by their ancestors or by people who have authority and influence over them will begin to run from the day the child turns eighteen.
Reasons that interrupt the statute of limitations for a lawsuit:
According to TCK Article 67;
1-)Taking the statement or interrogating the suspect or the accused
2-)Issuing an arrest warrant for the suspect or defendant
3-) Preparation of the indictment and its acceptance by the court
4-) Summoning the defendant to court (subpoena for hearing)
5-) Interrogation of the defendant
6-)The verdict is given (no matter whether it is conviction or acquittal)
The limitation period starts to run again from the date of each interruption.
However, the statute of limitations can be extended by half the original period at most (for example, if it is 15 years, it can be extended to a maximum of 22.5 years).
X. AUTHORIZED AND COMPETENT COURT
The courts competent for sexual abuse crimes are the High Criminal Courts.
The jurisdiction for sexual abuse crimes is determined by the Code of Criminal Procedure No. 5271 (CMK). As a general rule, the court where the crime was committed has jurisdiction. In other words, the High Criminal Court of the place where the sexual abuse crime was committed has jurisdiction.
XI. EXECUTION
A particularly important issue in the execution of sexual abuse crimes concerns the institution of conditional release. The amendment will now apply a two-thirds conditional release rate for those convicted of sexual abuse serving fixed-term prison sentences.
CONCLUSION
The crime of sexual abuse, the subject of our investigation, is regulated in Article 103 of the Turkish Penal Code, in the section titled “Crimes Against Sexual Inviolability.” The legal value protected by the crime of sexual abuse is the child’s sexual immunity and mental and physical integrity. The subject and victim of the crime of sexual abuse is the child subjected to the crime, the child’s body. The basis for this is the sexual abuse of a child.
The crime of sexual abuse is a crime that can be committed intentionally. It can be committed with direct intent or potential intent. No additional purpose or motive is required beyond intent. Intent must encompass the material elements of the crime. Mistakes regarding the elements of the crime type will eliminate intent. If intent is eliminated, this crime cannot be committed through negligence. Sexual abuse is not a crime that can be committed through negligence.
After the basic elements of the crime, the aggravated cases are listed. These are the cases that require a greater or lesser penalty for the crime.
Circumstances affecting culpability, such as being underage and general culpability, are mentioned as important in terms of the crime of sexual abuse.
In the crime of sexual abuse, which is a mere act, liability for attempt may arise if the act can be divided into parts. Whether attempt constitutes a qualified form of sexual abuse, such as inserting an organ or other object into the body, is a matter of debate in the doctrine.
It has been stated that the perpetrator who voluntarily gives up the qualified form of the crime of sexual abuse can be punished for the basic form of the crime.
Because sexual abuse is a crime that can be committed directly, liability based on indirect perpetration cannot be determined for this type of crime. If the perpetrator exerts control over the victim’s will and, through indirect perpetration, enables the victim to insert an organ or other object into them, the perpetrator will be held liable for the primary form of abuse.
Regarding the issue of concurrence in the context of the crime of sexual abuse, firstly the concurrence, then the chain crime is mentioned, and explanations are given regarding the crime of deprivation of liberty.
Finally, the issues that are specific to the crime of sexual abuse were evaluated under the headings of sanction, trial, statute of limitations and execution.
MOST WONDERED THINGS ABOUT THE CRIME OF SEXUAL ABUSE
1-) What is the crime of sexual abuse?
According to Article 103 of the Turkish Penal Code (TCK), it is the sexual abuse of a child. Any sexual act committed against a child who is under 15 years of age or who has reached the age of 15 but lacks the capacity to comprehend the legal implications and consequences of the act (e.g., a child with a developed cognitive capacity) constitutes this crime. Sexual acts committed against a child who is over 15 but under 18 years of age through force, threat, deception, or any other means that influence the will constitute sexual abuse.
2-) What is the difference between sexual abuse and the crime of sexual intercourse with a minor?
Any sexual act committed against children who are under 15 years of age or who have reached the age of 15 but lack the ability to comprehend the legal implications and consequences of the act (e.g., children with insufficient cognitive abilities) constitutes the crime of sexual conduct. Sexual acts committed against children who are over 15 but under 18 years of age through force, threat, deception, or any other means that influence the will constitute the crime of sexual abuse.
The crime of sexual intercourse with a minor will occur as a result of consensual sexual intercourse with children who are over 15 but under 18 years of age.
3-) Who is a child within the scope of the Turkish Penal Code?
According to Article 6/1-c of the Turkish Penal Code (TCK) No. 5237, a person who has not yet reached the age of 18 is a child. According to Article 3/1-a of the Child Protection Law (ÇKK) No. 5395, a person who has not reached the age of 18 is a child, even if he or she becomes an adult at an earlier age.
4-) Can the crime of sexual abuse be committed against a person who is under 18 years of age but has been declared an adult by court decision?
The victim of a sexual abuse crime is the child subjected to the act of abuse and the child’s body. The law divides children into two groups. The first group includes children who are under 15 years of age or who have reached 15 but are unable to grasp the legal implications and consequences of the act. The second group includes children who are over 15 but under 18.
A person who was under 18 years of age at the time the crime was committed, but was deemed an adult by court order, will also be a victim of this crime. In other words, the fact that a child was deemed an adult by court order is irrelevant to their being a victim of this crime.
5-) How much are the penalties?
A-) Basic Punishment
Sexual abuse at the level of harassment:
→ Imprisonment from 3 to 8 years (TCK 103/1-a)
Abuse by inserting an organ or object (rape):
→ Imprisonment from 8 to 15 years (TCK 103/1-b)
B-) Qualified Cases and Increases
a) The victim is under 12 years of age
Harassment: Minimum 5 years in prison
Rape: Minimum 10 years imprisonment (TCK 103/2)
b) Processed by ancestors, stepfathers, stepmothers, and persons under protection obligations
The penalty is increased by half (TCK 103/3)
c) Processing with the ease provided by public duty or service relationship
The penalty is increased by half (TCK 103/3)
d) Processed by more than one person together
The penalty is increased by half (TCK 103/3)
e) Committed with a weapon or threat
The penalty is increased by half (TCK 103/3)
f) The crime harms the physical or mental health of the victim
The sentence cannot be less than 15 years (TCK 103/5)
g) The victim enters a vegetative state or dies
Aggravated life imprisonment (TCK 103/6)
C-) Chain Crimes and Exceptions
If the perpetrator commits this crime more than once against the same victim, the penalty is increased (TCK 43 chain crime provisions apply).
The consent of the victim is not valid in any way because the consent of children is legally invalid.
6-) How does the punishment change if the victim is under 12 years of age?
If the victim is under 12 years of age, the lower limit of the penalty is increased:
Abuse: minimum 10 years in prison
Harassment: minimum 5 years in prison
7-) Is it subject to complaint?
A-) Basic shape:The basic form of sexual abuse is not subject to complaint. It is investigated ex officio.
B-) Qualified state:Aggravated cases that carry a higher penalty are not subject to a complaint. They are investigated ex officio. If the crime falls at the level of harassment, which carries a lesser penalty, it is subject to a complaint. The persons eligible to file a complaint are the victim, their parent, or guardian.
😎 What is the statute of limitations for the crime of sexual abuse?
The statute of limitations is a criminal law principle that results in the dismissal of a criminal case if a lawsuit has not been filed after a certain period of time has passed since the crime was committed, or if a lawsuit is filed but not concluded within the statutory period. The statute of limitations for the basic crime of child sexual abuse is 15 years. Sexual crimes in question can always be investigated within this statute of limitations, and a public lawsuit can be filed against the perpetrator.
9-) Which court has jurisdiction in sexual abuse crimes?
The duty to try the crime of sexual abuse through harassment is carried out by the high criminal court.
Except for the crime of harassment, the duty to try all sexual abuse crimes listed in TCK Article 103 is carried out by the high criminal court.
10-) What are the conditions for the crime of sexual abuse of a child by harassment?
The act of “harassment” included in the Turkish Penal Code No. 5237 has been defined in many decisions of the Special Chamber, which is responsible for hearing appeals cases related to crimes against sexual immunity, as “Any sudden and discontinuous act or acts that violate bodily immunity and are committed for the purpose of satisfying sexual desires towards a specific person” and “Any sudden, discontinuous and discontinuous acts”. In addition, it is seen that the criteria of “the acts being short-lived, sudden, discontinuous and being terminated by the perpetrator on their own” are also taken into consideration when assessing whether the act remains at the stage of “harassment”.
11-) What is the evidence in the crime of sexual abuse?
-Victim statement (even on its own can be strong evidence)
-Forensic medicine reports (physical examination)
-DNA samples and biological materials
-Camera recordings, digital correspondence, witness statements
-Child Monitoring Center (ÇİM) reports
-Witness Statement
12-) What is the difference between sexual abuse and sexual assault?
sexual assault :Non-consensual sexual acts against individuals over 18 years of age (TCK 102).
Sexual abuse:Non-consensual sexual acts towards children (under 18 years of age) (TCK 103).
13-) Does the age of the perpetrator provide a reduction in the sentence?
If the perpetrator is under 18 years of age, provisions specific to child convicts apply and a sentence reduction may be possible (TCK 31).
No discount is applied to defendants over 18 years of age; however, if there are special circumstances such as being a minor or having a mental illness, a discount may be applied.
14-) If the perpetrator is a relative of the victim, is the penalty increased?
Yes. If the perpetrator is an ancestor, stepfather/mother, sibling, or a person with a duty of care and supervision, the penalty is increased by half (TCK 103/3).
15-) If the perpetrator and the victim are married, is there a penalty?
In cases where the victim of a marriage is a child (e.g., early marriage), the crime of sexual abuse also occurs.
16-) If the victim discloses the sexual abuse years later, can a lawsuit be filed?
Yes, the victim can file a criminal complaint within the statute of limitations (usually 15-20 years) after turning 18. The statute of limitations begins on the victim’s 18th birthday. Generally, in cases of sexual abuse committed against minors, because the children are young, they often struggle to understand what they are experiencing, blame themselves, and fear that they will be unloved and condemned if they tell their families. Abused children often withdraw into themselves by the age of 16 or 17, tend to self-harm, and attempt suicide. They often discuss the abuse in subsequent interviews with a childcare provider.
17-) Does the fact that the perpetrator proposes marriage to the victim in order to avoid punishment affect the case?
No. The practice of “suspending a sentence due to marriage” was abolished with the 2016 amendment to the law. Marriage between the perpetrator and the victim does not eliminate the sentence.
18-) How can the reliability of the victim’s statement be ensured?
Forensic interviews with children are conducted with the assistance of Child Monitoring Center experts and educators. To prevent trauma, the child’s statement is recorded once, eliminating the need for further questioning.
19-) Does withdrawing the complaint drop the case?
No, withdrawing a complaint does not result in the dismissal of the case. It is not a crime subject to complaint. Because the state mandates the appointment of a legal representative for the victim, their parent, or guardian during the trial process, all such cases are pursued through legal channels, often reaching the Supreme Court.
20-) What is the Child Monitoring Center (ÇİM)?
These are centers where judicial, health and psychological processes are carried out together, without causing children to experience re-traumatization.
21-) If the perpetrator is the victim’s teacher or caregiver, is the penalty increased?
Yes, if the crime is committed by people who have a duty of education, care and supervision, the penalty is increased by half.
22-) What are the rights of the victim if the perpetrator is acquitted?
The victim may file a lawsuit for non-pecuniary damages, and the state may also provide psychological support.
23-) Can a victim of sexual abuse receive psychological support?
Yes, state-supported psychological and social services are available.
24-) How is the victim’s statement taken?
In Child Monitoring Centers, a statement is taken once, accompanied by a pedagogue, and recorded.
25-)Is there an arrest warrant for sexual abuse? Is judicial control granted?
Yes, since the catalog is a crime, an arrest warrant can be issued if the evidence is sufficient. Judicial control measures can also be applied to the defendant/suspect based on the evidence in the case. For example, judicial control measures can be imposed on the defendant by requiring them to sign in at the police station closest to their residence three times a week. Additionally, judicial control measures can be imposed on the defendant by requiring them to refrain from traveling abroad. Arrest or judicial control measures may vary depending on the evidence and the court in which the trial is held.
26-) Does the criminal record of the perpetrator affect the punishment?
Yes, if the perpetrator has a criminal record of similar crimes, the sentence may be increased or the suspension of the announcement of the verdict will not be applied.
27-) What happens if the perpetrator is not mentally healthy?
Security measures are applied to perpetrators who are mentally unstable, rather than punishment. Those who lacked legal capacity and criminal responsibility at the time the crime was committed are not punished.
28-) Does the perpetrator’s remorse provide a reduction in the sentence?
Provisions of sincere remorse and effective remorse may provide a reduction in the sentence for some crimes, but they are generally not applied to the crime of sexual abuse.
29-) Are there any protection measures for victims of sexual abuse?
Yes, confidentiality, identity change, protection measures and social support can be applied for the victim and their family.
30-) Are people who do not report sexual abuse held responsible?
Yes, public officials and those who learn about the crime and do not report it can be held responsible according to the Turkish Penal Code.
31-)How does the process work if the perpetrator does not admit his crime?
The process continues with evidence, victim statements and expert reports; the perpetrator’s denial does not stop the case.
32-) Is the victim’s statement alone sufficient?
Yes, the victim’s consistent and credible testimony alone may be sufficient for conviction.
33-) Is there a reconciliation between the perpetrator and the victim?
No, this crime is outside the scope of reconciliation.
34-) What happens if the perpetrator flees abroad?
A red notice may be issued and the refund process may be initiated.
35-) Is confidentiality ordered in sexual abuse crimes?
Yes, confidentiality of identity and hearing is maintained for the protection of the victim.
36-) If the perpetrator is a public official, is the penalty increased?
Yes, the penalty increases when the influence conferred by public office is abused.
37-) If the child consents, is there a crime?
The consent of the children in the first group is not valid in any way.
38-) Is the punishment different if the perpetrator is a woman?
No, the gender of the perpetrator does not change the amount of the penalty.
39-) How is sexual abuse committed online evaluated?
Online abuse (visual, written harassment, etc.) is also a crime and is punished according to the Turkish Penal Code.
40-) Does the fact that the perpetrator was drunk provide a reduction in the sentence?
No, if the person consumed alcohol voluntarily, no penalty reduction will be applied.
41-) Why is the statement of a sexual abuse victim taken all at once?
It is taken all at once and under the supervision of a specialist in order not to increase the psychological trauma of the victim.
42-) Can the punishment of the perpetrator be postponed?
Generally, it is not postponed because these crimes are considered serious and catalogue crimes.
43-) If the perpetrator has a psychological disorder, will he be punished?
If the person is not mentally healthy, security measures will be applied, and if there is partial impairment, a discount may be applied.
44-) Is there a connection between child pornography and sexual abuse?
Taking or sharing images of a child without permission is also considered sexual abuse.
45-) What happens if the perpetrator offers money to the victim after the crime?
This does not reduce the penalty, and may also constitute a threat or blackmail crime.
46-) If the perpetrator is not under arrest, can he approach the victim?
No, a decision may be made not to approach.
47-) What happens if the victim is afraid to complain?
The prosecutor’s office may initiate an investigation ex officio even on suspicion, and measures are taken to protect the victim.
48-) Does the apology of the perpetrator reduce the punishment?
No, it does not provide any reduction in the penalty.
49-) Can a victim of sexual abuse receive compensation?
Yes, the victim can file a lawsuit for both material and moral compensation.
50-) Is it mandatory to be the victim’s lawyer in a sexual abuse case?
No, but the bar association will assign a lawyer to the victim free of charge.
51-) What are the Supreme Court’s criteria regarding the crime of sexual abuse?
1- The victim’s statements that do not create any contradiction in essence,
2- The victim must not have any hostility towards the perpetrator that would necessitate slander.
3- Medical findings confirming the incident,
4- Searches for witness statements and other supporting evidence, if any.
52-) What happens if physical examination is not performed?
The Supreme Court’s approach is as follows:
-When the defendant resists physical examination: If there is a judge’s decision, forced examination is legal.
-If the victim refuses the examination: The best interests of the child are paramount; if the child’s psychology would be seriously harmed by the forced examination, the examination may not be performed and other evidence is brought to the fore.
Sample Supreme Court decision;
COURT OF APPEALS 13TH CRIMINAL CHAMBER Docket: 2012/17565 Decision: 2012/23123
The importance of this decision is that the Supreme Court overturned the court decision, stating that the examination must be carried out in accordance with Article 76/2 of the CMK, provided that the health of the victim is not endangered.
53-) Can a judicial control decision be made in the crime of sexual abuse?
Yes, judicial control decisions can be made for the crime of sexual abuse (TCK Art. 103), but the conditions and application of this situation are quite limited.
Even if the suspect or defendant meets the conditions of detention, judicial control may be preferred in some cases:
-If the suspect’s risk of escape is low despite the severity of the crime.
-If the evidence has been collected and there is no possibility of obfuscation.
-The arrest is considered disproportionate due to reasons such as the defendant’s age, health condition, and permanent residence.
-The Supreme Court states that judicial control can be applied “exceptionally”, but in catalogue crimes such as sexual abuse, arrest is often the priority.
54-) How long does the trial take?
Trial times for sexual abuse crimes vary depending on the court conducting the trial. Local court trials typically last between six months and two years. The appeals review and decision-making process is generally short in the Court of Appeals. In our cases, this period averages six months. At the Court of Appeals (Court of Appeals), cases are often pending for extended periods, with decisions often delayed. Cases can be pending for as long as five, six, seven, eight, nine, or even ten years. This violates the principle of a reasonable trial period and causes grievances.
Sample Supreme Court Decisions on the Crime of Sexual Abuse:
1-) Mistakes regarding the age of the victim in the crime of sexual abuse:(Court of Appeals Criminal General Assembly, Case No. 2013/749, Decision No. 2015/277)
| “…”The fact that the victim did not know that he was under fifteen years of age is contrary to the normal course of life, and the conditions for the application of the case of error regulated in Article 30 of the Turkish Penal Code are not present in the concrete case…” |
2-) Age Difference and Mental Health Deterioration in the Crime of Child Sexual Abuse:(Court of Appeals Decision – 14th CD., E. 2012/2911 K. 2014/1762 T. 17.2.2014).
| “…The family of the 14 years and 6 months old victim, who met the 27-year-old defendant who lives in another city through a mobile phone and established an emotional friendship, wanted to prevent her friendship with the defendant after learning about this closeness, the victim persistently continued to meet with the defendant despite the pressure she received from her family, the defendant Il came to Tokat province with the other defendants on the day of the incident as they decided, they set off for Balıkesir province with the victim, they had sexual intercourse in the car while they were taking a break at rest facilities, the defendant and the victim had sexual intercourse in the car during the road check carried out by the Gendarmerie on the way to Balıkesir province, when the victim, who was in the same car with the defendants, told what happened, it is understood that an investigation was started in the incident, the report dated 04.01.2010 prepared by the 6th Specialization Board of the Forensic Medicine Institute about the victim stated that “depressive adjustment disorder was detected in the victim that is of a nature and degree that will impair her mental health due to the incident she was exposed to and that her mental health has deteriorated” and this Although the defendant’s sentence was increased pursuant to Article 103/6 of the Turkish Penal Code based on the report, it was determined that the defendant, who had sexual intercourse with the victim without any influence on the will such as force, threat or fraud, had a different and more severe consequence than the one he intended due to this action. In order to be held responsible for this consequence, which occurred but was not intended, according to Article 23 of the Turkish Penal Code, he must have acted at least negligently. In the concrete incident, considering the defendant’s social and cultural status, level of education, professional experience, personal characteristics, the ages of the parties and the non-forced manner in which the incident occurred, the deterioration in the victim’s mental health that resulted as a serious consequence could not have been foreseen by the defendant and it is out of the question for him to have acted even negligently. Considering that this damage can be taken into account in individualizing the sentence within the scope of Article 61 of the Turkish Penal Code when deviating from the lower limit, an excessive sentence was determined for the defendant by applying Article 103/6 of the Turkish Penal Code. |
3-) Committing the crime of qualified sexual abuse by inserting an organ or other object into the body:(Court of Cassation General Assembly of Criminal Cases – Decision: 2015/418).
| “…The simple form of this crime, regulated in the first paragraph of the article, differs from the aggravated form regulated in the second paragraph in that the sexual act committed against a child is committed in a manner that violates bodily integrity without inserting an organ or other object, and the intent is to satisfy sexual desires. In the aggravated form in the second paragraph, the material element is the insertion of an organ or other object into the body, and the perpetrator’s intent must be to commit such an act. |
4-) Crime of Sexual Abuse and Deprivation of Liberty:(Court of Cassation 14th Criminal Chamber – Decision: 2019/11294).
| “…Considering that the crimes of qualified sexual abuse of a child and deprivation of liberty were committed by the first instance court based on the legally invalid consent of the victim due to her age, without force, threat, fraud or reason affecting the will, and that the legal elements of the crime of deprivation of liberty were not met because the defendant detained the victim for a limited period of time in the sexual abuse incident that took place in the workplace, the defendant should have been punished in accordance with Articles 103/2, 43/1, 109/1, 3-f, 5 of the Turkish Penal Code No. 5237. However, instead of accepting the appeal against the convictions that were rendered on the grounds that they were not in compliance with Article 230/1-b of the Criminal Procedure Code No. 5271, the appeal was rejected in writing on the merits, thus violating Article 289/1-g of the same law. |
5-) Voluntary Renunciation in the Crime of Sexual Abuse:(Court of Cassation 14th Criminal Chamber – Decision: 2020/1666).
| “…According to the statements of the victim at each stage and the entire file content, the defendant who wanted to hug the victim … who came to the servant room on the day of the incident, was unable to hug her because of the victim’s pushing, and since it was understood that he voluntarily gave up the act of sexual abuse within the scope of Article 36 of the Turkish Penal Code No. 5237, without any external reason preventing him from completing the act other than the victim’s surmountable resistance, considering that the legal elements of the crime of attempted child sexual abuse do not exist at the stage the act reached before giving up, the defendant is sentenced in writing instead of acquitting. |
6-) Victim Statement, Research and Evidence (Especially Forensic Medicine Reports) in Sexual Abuse Crimes:(Court of Cassation 14th Criminal Chamber – Decision: 2021/382).
| “…In the report prepared by the Biology Specialization Department of the Forensic Medicine Group Presidency dated 09.11.2015, it was stated that the DNA profile detected under the anal frotti and sweatpants belonged to the victim, but no sperm cell or genotype belonging to the defendant was found. Considering the defense and the entire file content, there is no clear, convincing and undeniable evidence beyond any doubt that the defendant committed aggravated sexual abuse by taking the thirteen-year-old victim, whom he met on the night of the incident when he applied for a job, to his home to give her clothes, then removing her clothes and inserting an organ into her anally. Instead of convicting her by considering that the act of rubbing his genitals against the victim’s anus constitutes the crime of child sexual abuse, a mistake was made in determining the nature of the crime and a conviction was rendered for the crime of aggravated sexual abuse of a child. In this regard, since the appeal objections of the participating victim’s attorney, the defendant’s attorney, and the participating Ministry’s attorney are deemed appropriate, the judgment is REVERSED in accordance with Article 321 of the Criminal Procedure Code No. 1412, taking into consideration Article 8/1 of Law No. 5320. |
7-) Momentary, Intermittent (non-continuous) Sexual Behaviors are within the scope of the Crime of Harassment:(General Criminal Assembly 2021/96 E., 2022/500 K.).
| “…this contact was not “sudden, brief and interrupted” as stated in the reversal decision, the defendant’s action was continuous and exceeded the level of harassment and lasted at least 1 minute 24…, “It is understood that the defendant kissed the child in need of protection twice on the cheek and once on the lips, and also caressed the child’s chest twice at different intervals as stated above, and in any case, he also kissed the child on the forehead once and hugged him for a period not longer than a short time. Considering the continuity of the defendant’s actions and the fact that it did not involve brief and sudden contact, as well as the fact that a child in need of protection under the age of 12 is unlikely to distinguish whether a brief and sudden action was sexually motivated or not, considering the fact that the child in need of protection cried and told her mother about the incident due to the continuity of the action, it shows that even the child in need of protection understood that it was sexually motivated, the defendant’s action did not remain at the level of harassment…” |
😎CONTRADICTION BETWEEN STATEMENTS (The victim stated that the defendant who committed the act had colored eyes – The victim later stated that she might have been mistaken about the defendant’s eyes being blue or green due to the difference in light / The victim resolved the contradiction logically, which arose from the social worker’s report describing the defendant as having large blue eyes)
* DETERMINATION OF THE DESCRIPTION (It is not possible for the victim to fully recognize and describe the physical characteristics of the defendant who came down the stairs after the act that developed suddenly and moved quickly, according to ordinary life experiences – There is no hostility between the victim and the witness that would require them to slander the defendant/The defendant stated that there is no hostility between the victim and the witness who made the allegations against him and when all the matters are evaluated, the act attributed to the defendant is proven) (COURT OF APPEALS CRIMINAL GENERAL ASSEMBLY E. 2020/14-157 K. 2021/260 T. 8.6.2021)
| ”..In the decision of the Supreme Court of Appeals 6th Criminal Chamber dated 24/10/2011 and numbered 2008/15060 E-2011/44361 K; The defendant’s refusal to admit the crime charged at all stages, the partial contradiction between the statement of the defendant … that the items in question were taken in the vehicle brought by the defendant … during the prosecution phase, although he never mentioned the defendant during the investigation phase, and the statement of …, which is considered a crime, against whom a decision of acquittal was made, contrary to the defense of the defendant who stated that he did not commit the crime charged, and the entire content of the file; considering that there was no sufficient, definitive evidence other than the criminal charge that the defendant committed the crime charged, and that instead of acquitting the defendant, a written conviction was ruled, it was decided that the conviction decision given by the local court BE REVERSED. In the decision numbered 2006/11735 E-2010/15175 K, dated 30/09/2010 Considering that the defendant … committed the charged crime of theft, and that there is no legal evidence beyond all doubt, sufficient, definitive and convincing for his conviction, other than the abstract accusation of guilt by the other defendant … at various stages, proving the contrary of his defense, it was decided to REVERSE the verdict of conviction given by the local court, stating that his conviction was decided in writing on an illegal and improper ground, without considering that an acquittal decision should be made. In the case law of the 4th Criminal Chamber of the Supreme Court of Appeals, dated 22.05.1996, numbered 1996/3748, decision numbered 1996/4759; All the data on which the court decision is based, the conclusions reached by the court regarding this data, the evaluations of the claim, the defense and the witness statements, if any, must be clearly reflected in the justification, and in a way that will convince the defendants, the victims, the Public Prosecutor and everyone else and allow for the Supreme Court’s review, in accordance with Articles 141 of the Constitution and Articles 32, 260 and 308/7 of the CYUY. The principle of “the benefit of the doubt” should be applied when reasonable doubt regarding the defendant’s guilt or the circumstances surrounding the case persists despite a meticulous preliminary investigation and all evidence gathered and evaluated through all kinds of investigations. Failure to do so will result in harm to the injured party, justice, and society. The principle of “the benefit of the doubt,” which has a wide scope and holds an indispensable place in our legal system, can serve the justice system and the rule of law if properly applied and understood. Pursuant to the principle that “the defendant enjoys the benefit of the doubt,” one of the most fundamental principles of criminal procedure, in our case, no definitive, doubt-free evidence has been obtained to refute the defendant’s defense that he committed the crime of sexual abuse or harassment against the victim. Furthermore, despite the victim’s assertion that the perpetrator of the incident had blue eyes during the investigation and, later, that he had light eyes, it was determined that the defendant did not have light eyes. While there is no reason for the parties to be unfamiliar with each other and therefore to slander in the crime of sexual abuse, which is extremely difficult to prove, there is a possibility that the victim, who briefly saw the defendant, could make a mistake in her identification. In our case, while it is perfectly natural that the victim identified the defendant she saw on the street after the incident, pointed him out to her father, and after his father followed and apprehended him, it is clear beyond dispute that this identification, which is the sole piece of evidence, does not eliminate the possibility of mistake. This is because the defendant was not apprehended by officers and presented to the victim from among various individuals. The file reveals that the identification was conducted after the victim had personally identified the defendant. It is inevitable that the mistaken assumption made by the victim when she pointed out the defendant to her father, whom she saw on the street, would later be reflected in the face-to-face identification conducted at the police station. In this case, the identification, which is the sole evidence used to establish the conviction, should not leave even the slightest room for doubt. However, it has been clearly established that a highly detailed physical feature, such as eye color, does not match the defendant. The absence of any other significant physical feature has not completely eliminated the possibility of error in the identification process. Established practices that interpret even the slightest doubt regarding the proof of the act in favor of the defendant cannot be expected to disregard the margin of error in the identification process used as the basis for the conviction and remain indifferent to a conviction for sexual abuse, which, while simple, carries very serious consequences. It is inconceivable that any modern legal system would allow such a situation. It is clear that such a practice would deeply shake the most fundamental principles of criminal procedure law, would also be contrary to the established practices explained as examples above, and such a contradiction would damage the principle of equality before the law, which is one of the fundamental principles of criminal law. Considering that the court, which is obliged to evaluate all possibilities, has not been able to find definitive evidence that proves beyond doubt that the defendant committed sexual abuse to refute his defense, the court should have decided to overturn the decision to resist, on the grounds that the defendant should have been acquitted according to the evidence collected and established practices. However, the decision of the esteemed majority of the Supreme Criminal General Assembly of the Court of Cassation to reject the objection in this respect was not agreed with for the reasons presented and explained above. |
9-) CONTRADICTIONS IN THE STATEMENTS OF THE ACCUSED AND THE VICTIM – CREDIBILITY ELEMENTS OF THEIR STATEMENTS AND DEFENSES
| The 14th Criminal Chamber of the Supreme Court of Appeals, dated October 21, 2019, and numbered 2016/7761 E. and 2019/11837 K., ruled: “The most difficult criminal cases to determine a conscientious opinion are those involving crimes that occur face-to-face between the defendant and the victim, without the presence of witnesses, additional evidence, or evidence. Since the primary evidence in these crimes is the testimony, to reach a conscientious opinion, the defendant’s statements are evaluated for contradictions, omissions, the lack of a clear picture of the incident, the relevance of the victim’s or victim’s statements to the incident, the presence of contradictions, the existence of hostility between the defendant and the defendant, and the possibility of a dispute that would warrant slander.” |
The Importance of Legal Support
Sexual abuse crimesThese are matters that require technical knowledge, legislative expertise, and deep expertise in judicial practices. While the legal provisions are clear, each case has its own unique circumstances, and even a small mistake can lead to loss of rights. Therefore, working with an experienced attorney from the beginning of the process is crucial to determining the right strategy, protecting your rights, and achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications. A professional lawyer will guide you not only in preparing the petition but also in gathering evidence, representing the court, negotiating, and pursuing alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.