Punishment for the Crime of Sexual Harassment in Turkish Law

Sexual harassment is a crime against sexual inviolability and is regulated in the Turkish Penal Code (TPC) in Turkey. This article will discuss the definition, elements, and criminal sanctions of the crime of sexual harassment. In addition, the differences between this crime and other sexual crimes and interpretations in judicial decisions will be examined.

 

The crime of sexual harassment is regulated in Articles 102 and 103 of the Turkish Penal Code No. 5237. This crime appears as a qualified form of sexual assault and sexual abuse crimes that require less punishment. With the amendment made by Law No. 6545 dated 18.06.2014, the legislator clearly defined the act of sexual harassment and determined its criminal sanction. With this regulation, some acts that were previously considered simple sexual assault or simple sexual abuse are now considered within the scope of sexual harassment.

 

For the crime of sexual harassment to occur, the perpetrator must touch the victim’s body with sexual intent. However, this contact should be limited to sudden and intermittent movements. For example, in a Supreme Court decision, it was stated that “the defendant’s sudden act of squeezing the victim’s sexual organ, which was not continuous and was interrupted when the victim screamed and the witness arrived, causing the defendant to leave the scene, remained at the level of sexual harassment”. However, considering the intensity, effect, and continuity of the perpetrator’s behavior, if the act exceeds the dimension of sexual harassment, the crime of simple sexual assault or simple sexual abuse will occur.

 

According to Article 102/1 of the TPC in the Turkish Legal System, if the crime of sexual assault remains at the level of sexual harassment, the perpetrator is punished with imprisonment from two to five years. On the other hand, if the crime of sexual abuse regulated in Article 103/1 of the TPC remains at the level of sexual harassment, the perpetrator is punished with imprisonment from three to eight years. However, if the victim has not completed the age of twelve, the punishment to be given in case of sexual harassment cannot be less than five years. This regulation provides for heavier sanctions against the sexual abuse of children.

 

The law does not impose any restrictions on who can be the perpetrator of the crime of sexual harassment. Therefore, the perpetrator of this crime can be anyone, male or female. The age of the perpetrator is also not important. However, in the case of sexual abuse that remains at the level of sexual harassment, if the perpetrator is a child, the investigation and prosecution depend on the complaint of the victim, their parent or guardian. This regulation was introduced to protect child perpetrators.

 

The victim of the crime of sexual harassment is persons over the age of eighteen in terms of sexual assault, and children under the age of eighteen in terms of sexual abuse. However, for children who have completed the age of fifteen, in order for the act of sexual harassment to be punishable, it must have been carried out based on force, threat, deception or another reason affecting the will. If the victim in this age group has consented to the act constituting sexual harassment, there will be no criminal liability.

 

The mental element of the crime of sexual harassment is intent. The perpetrator must have acted with the aim of sexual satisfaction. In a Supreme Court decision, it was stated that “the defendant’s act of merely blowing a kiss to the victim with his hand” did not constitute the crime of sexual harassment as it did not carry a sexual purpose. Therefore, actions performed by the perpetrator without lust may cause other crimes such as intentional injury, insult, or threat, depending on the characteristics of the specific case.

 

Attempt is possible in the crime of sexual harassment, but it can only occur in cases where the execution movements can be divided into parts. For example, if the perpetrator cannot touch the victim due to being prevented by third parties or the victim escaping while trying to touch the victim’s body, sexual harassment will remain at the attempt stage. Also, if the perpetrator voluntarily abandons the execution of the act constituting sexual harassment, according to Article 36 of the TPC, they will be held responsible for the crime committed up to that point, not for the attempt.

 

All forms of participation are possible in the crime of sexual harassment. However, the case where the crime is committed jointly by more than one person is regulated as a qualified circumstance requiring increased punishment in Articles 102/3-d and 103/3-a of the TPC. In this case, for the punishment to be increased, the crime must be committed with the participation of at least two people at the level of joint perpetrators.

 

If the perpetrator has sudden body-contacting behaviors against the victim at different times within the scope of a decision to commit a crime, the provisions of consecutive crime should be applied in accordance with Article 43/1 of the TPC. However, after an indictment is issued for the perpetrator’s act of sexual harassment, they should be punished separately for the acts of sexual harassment committed against the same victim. In this case, the provisions of consecutive crime are not applied.

 

There are also some features regarding the investigation and prosecution of the crime of sexual harassment. The investigation of the sexual assault crime that occurs in the form of sexual harassment is subject to complaint. On the other hand, the form of sexual abuse that occurs in the form of sexual harassment is investigated ex officio. However, if the perpetrator of the crime of sexual abuse that remains at the level of sexual harassment is a child, the investigation and prosecution depend on the complaint of the victim, their parent or guardian.

 

Criminal courts of first instance are responsible for hearing cases related to the crime of sexual harassment. However, especially due to its transitional crime nature, the competent court should be determined by considering the event that is the subject of the trial in the indictment. In a Supreme Court decision, it was stated that “in the trial of the defendant for the crimes of deprivation of liberty and sexual abuse of a child by sexual harassment, according to the description of the event in the indictment, the criminal court of first instance is competent”.

 

In conclusion, the crime of sexual harassment has a special place among crimes against sexual inviolability in Turkey. The punishment for this crime varies according to the conditions under which it is committed, the age of the victim, and the characteristics of the perpetrator. The punishment that a person who commits sexual harassment may receive can range from two to eight years of imprisonment. However, each concrete case needs to be evaluated within its own characteristics, and the elements of the crime need to be carefully examined. Therefore, it is recommended that persons tried for the crime of sexual harassment should seek legal assistance from a criminal lawyer.

 

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