Offence of Sexual Abuse

📎 Related Article: What is a Criminal Record??

📎 Related Article: Personal Injury Claims Arising from Traffic Accidents?

The concept of a child, who is the victim of the offence of sexual abuse, is defined in the law as a person who has not completed 18 years of age. The law stipulates a distinction based on age for the child victim of the offence. Accordingly:

• The offence of sexual abuse being committed against a child who has not completed 15 years of age
• The offence of sexual abuse being committed against a child who has completed 15 years of age but lacks the capacity to comprehend the legal consequences and meaning of the act
• The offence being committed against children between the ages of 15 and 18 based on a reason affecting their will

Based on the distinction made in the bullet points above, it can be stated that the law places greater importance on punishing the offence of sexual abuse committed against those who lack the capacity to comprehend the legal consequences and meaning of the act.

Regarding the perpetrator of the offence of sexual abuse, the law does not seek any specific characteristic. It is an offence that can be committed by anyone. The perpetrator may be of a different gender than the victim, or of the same gender. The only specific situation regarding the perpetrator is when the perpetrator is also a child. If the act remains at the level of molestation and the perpetrator of this offence is also a child, the investigation and prosecution are made subject to the complaint of the victim, their parent, or guardian, thereby attempting to protect individuals who are in the status of a child, even if they are in the position of a perpetrator.

Basic Form and Penalty

For the basic form of the offence of sexual abuse to occur, it is sufficient for the perpetrator to attempt to fulfill their sexual desires or other acts of this nature upon the child victim, provided that these acts do not reach the level of sexual intercourse. For the commission of the offence, the sexual gratification of the perpetrator is not required. The act of sexual abuse may also lead to the offence of deprivation of liberty. Detailed information regarding deprivation of liberty can be found in our article on this topic.

The penalty stipulated in the law for the basic form of the offence of sexual abuse is imprisonment from eight to fifteen years. However, if the victim is a person who has not completed twelve years of age, the penalty to be imposed cannot be less than ten years.

Another form of committing the offence of sexual abuse is the act of molestation, which entails a lesser penalty than the basic form of the offence. The biggest difference between molestation and abuse is that the act of molestation is not continuous and is superficial. For the offence of sexual abuse remaining at the level of molestation, physical contact with the child victim is also required. However, this contact must be to a degree insufficient for the basic form of the offence of sexual abuse to occur.

If the offence of sexual abuse remains at the level of molestation, the penalty to be imposed is from three to eight years. However, if the victim is a person who has not completed twelve years of age, the penalty to be imposed cannot be less than five years.

Consent in the Offence of Sexual Abuse

If the perpetrator claims that the act was committed with the victim's consent, a distinction must be made based on the age of the child victim. The legislator has granted a limited scope for consent in the offence of sexual abuse. Accordingly, if the child victim is between zero and fifteen years of age, or between fifteen and eighteen years of age but lacks the capacity to comprehend the legal meaning and consequences of the act, the existence of consent is not given value.

The legislator has allowed consent to gain importance if three conditions are met. These are:

• The victim being between fifteen and eighteen years of age,
• The victim having the capacity to understand the legal meaning and consequences of the act, and
• There being no circumstance affecting the victim's will.

In the presence of the above conditions, the act will lose its character as an offence of sexual abuse. In this case, it can be said that the act constitutes the offence of "sexual intercourse with a minor" regulated under Article 104 of the Turkish Penal Code. Since the investigation of this offence is subject to a complaint, in the absence of a complaint, consent will become a ground for legality, and the act will not constitute an offence.

Complaint, Statute of Limitations, and Competent Court

By its nature, the offence of sexual abuse is not an offence subject to complaint. However, a complaint may be mentioned if the offence remains at the level of molestation and the perpetrator is also a child. In this case, if the victim, their parent, or guardian files a criminal complaint within 6 months from the commission of the offence, the investigation phase begins. Apart from this situation, the offence of sexual abuse falls within the scope of offences investigated ex officio.

The statute of limitations for prosecution is fifteen years. The statute of limitations for prosecution is an institution that results in the dismissal of a case if a lawsuit is not filed within the period specified in the law regarding an act constituting an offence, or if a lawsuit has been filed but could not reach the final stage.

If the offence remains at the level of molestation, the competent courts will be the Criminal Courts of First Instance. All other situations fall within the jurisdiction of the High Criminal Courts.

Relevant Court of Cassation Decisions

Decision 1:

"The failure to explain in the reasoned decision the evidence to show that the defendant's act of touching the victim's sexual areas over her clothes was not continuous, sudden, or intermittent, and instead of convicting for simple sexual abuse of a child by molestation, rendering a conviction for the offence of simple sexual abuse of a child with reasoning inconsistent with Article 230/1-b of the Code of Criminal Procedure No. 5271, and consequently rejecting the appeal application on its merits in writing instead of accepting it, thereby contravening Article 289/1-g of the same Law, is contrary to law. Since the appeals of the defendant's counsel and the intervening Ministry's representative are found to be well-founded in this respect, the judgment of the Istanbul Regional Court of Appeals 20th Criminal Chamber dated 10.04.2018, with File No. 2018/1115 and Decision No. 2018/614, rejecting the appeal application on its merits, is hereby REVERSED pursuant to Article 302/2-4 of the Code of Criminal Procedure No. 5271. The file shall be sent to the court of first instance, and a copy of the decision shall be sent to the Istanbul Regional Court of Appeals 20th Criminal Chamber. Decided unanimously on 27.06.2019." Court of Cassation 14th Criminal Chamber 2019/2269 E. 2019/10411 K.

Decision 2:

"Regarding the appeal review of the judgments rendered against the defendants ..., ..., ... and ... for the aggravated sexual abuse of a child; Considering the victim's statements at various stages, the defense, the statements of the other defendant ..., and the entire case file, it is understood that the victim, who met with the defendants who decided to wait for her to come of age on the date of the offence, pressured them to marry defendant ... and threatened to commit suicide, whereupon the defendants were forced to consent to informal cohabitation with Ömer due to the necessities brought by social living conditions, societal perspective, and prevailing traditions in the environment they lived in. Given that the defendants did not act with criminal intent, rendering a conviction in writing instead of an acquittal is contrary to law. Since the appeals of the defendants' ..., ..., ... and ... counsels are found to be well-founded in this respect, the judgments are hereby REVERSED pursuant to Article 321 of the Code of Criminal Procedure No. 1412, with due regard to Article 8/1 of Law No. 5320. Decided unanimously on 26.06.2019." Court of Cassation 14th Criminal Chamber 2015/4252 E. 2019/10373 K.

Decision 3:

"Considering the victim's statements at various stages, the defense, the Forensic Medical Report dated 05.12.2008 stating that no medical evidence of acute or chronic sodomy was found in the victim, and the entire case file, there is insufficient, definitive, and convincing evidence for the punishment of the child offenders on the grounds that they committed sexual abuse acts against the victim by penetration. Given that the acts remained at the level of simple sexual abuse, rendering judgments in writing by falling into error in determining the qualification of the offence, instead of rendering a conviction based on the more lenient law to be determined, taking into account the regulations introduced by Law No. 6545 which came into force on 28.06.2014 and Law No. 6763 which came into force on 02.12.2016 regarding offences against sexual inviolability, is contrary to law. Since the appeals of the child offenders' counsels are found to be well-founded in this respect, the judgments are hereby REVERSED pursuant to Article 321 of the Code of Criminal Procedure No. 1412, with due regard to Article 8/1 of Law No. 5320. Decided unanimously on 26.06.2019." Court of Cassation 14th Criminal Chamber 2015/7134 E. 2019/10400 K.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy