Sexual Assault Offence

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The offence of sexual assault, or commonly known as rape, is among the offences that most severely violate an individual's bodily integrity.

The most significant difference between the offence of sexual assault and the offence of sexual harassment is the absence of any physical intervention against the victim's bodily integrity in the latter.

If an offence of the nature of sexual assault is committed against persons considered children by law, it will be referred to as the offence of sexual abuse, not sexual assault. As can be seen, the offence of sexual abuse is distinguished from the offence of sexual assault by the nature of the victim it aims to protect. You can find more detailed information about the offence of sexual abuse in the article "Sexual Abuse Offence".

The biggest difference between the offence of sexual assault and the offence of sexual intercourse with a minor lies in the age of the victim. While the offence of sexual intercourse with a minor can only be committed by engaging in sexual intercourse with persons between the ages of fifteen and eighteen who have a sufficiently developed capacity for discernment, sexual intercourse is not a prerequisite for the formation of the sexual assault offence. Acts such as hugging, kissing, or touching for a certain period are sufficient for the formation of the sexual assault offence, whereas these acts do not constitute the offence of sexual intercourse with a minor.

Victim and Perpetrator in Sexual Assault Offence

In its basic form, the legislator has not sought any specific characteristic in the perpetrator. The perpetrator can commit the offence against individuals of their own sex or the opposite sex. One of the circumstances that presents a specific characteristic for the perpetrator is an aggravated form of sexual assault, regulated under Article 102, paragraph 2 of the Turkish Penal Code.

According to the relevant paragraph, one of the acts causing the formation of the sexual assault offence, and considered an aggravated form, is the insertion of an organ or another object into the body by persons within a marital union against their spouse. In such cases, if persons within a marital union commit sexual assault against their spouse through the aforementioned acts, the investigation and prosecution of the offence are made subject to the complaint of the victim spouse, and the penalty is regulated to be not less than twelve years.

Other characteristics that would increase the penalty for the offence if present in the perpetrator are also included in paragraph 3 of the same article. We can summarize these circumstances as follows:

• The offence being committed by abusing powers granted by public office, guardianship, or service relationship,
• The perpetrator being a blood relative (including third-degree relatives such as nieces, nephews, uncles, aunts) or a relative by affinity (including third-degree relatives by affinity such as spouse's uncle, aunt) of the victim,
• The existence of a stepmother, stepfather, or step-sibling relationship,
• The existence of an adoption relationship between the perpetrator and the victim.

If the aforementioned aggravated circumstances are present in the incident, the penalty to be imposed on the perpetrator shall be increased by half.

The gender of the victim is irrelevant for the offence of sexual assault. Marital status (married or single) is also irrelevant for the formation of the offence. The crucial point for the victim is age. The victim of sexual assault cannot be under eighteen years of age. Another specific characteristic for the victim is being physically or mentally unable to protect themselves. In other words, committing sexual assault against a defenseless and helpless victim is considered an aggravated form of the offence, and the penalty is increased accordingly.

Basic and Aggravated Forms

The basic form of the sexual assault offence is regulated in the first paragraph of Article 102 of the TPC. Accordingly, the basic form of the offence is the violation of a person's bodily integrity through sexual acts. Sexual intercourse is not a prerequisite for the formation of the basic form of the offence. In this context, acts such as kissing or persistent touching can also constitute the basic form of the offence. What is important is the existence of physical contact.

The act of sexual molestation constitutes a form that requires a lesser penalty than the basic form of sexual assault. The act of sexual molestation must also involve physical contact. However, it can be committed through light, sudden, and non-repetitive acts compared to the basic form of the offence. Examples of sexual molestation include hugging the victim's waist or holding their arm with sexual intent.

The aggravated sexual assault offence can be committed by inserting an organ or another object into the body. The situation commonly known as rape in daily life is an aggravated form of the sexual assault offence. The perpetrator can also commit this offence by inserting an object other than an organ. In this regard, the act of inserting an object into the body does not require a sexual motivation.

The commission of the offence with a weapon, or by multiple persons jointly, or by taking advantage of places where people gather, is also considered an aggravated form for the sexual assault offence. We examined the remaining aggravated circumstances in our previous section.

Complaint, Statute of Limitations, and Conciliation

There are two situations subject to complaint. The complaint must be made within six months of learning about the perpetrator and the act. The first is the sexual assault offence committed through sexual molestation. In this case, the investigation and prosecution are subject to complaint. The second situation is regulated in Article 102, paragraph 2 of the Turkish Penal Code. According to this, it is the commission of the act by inserting an organ or another object into the body between spouses within a marital union. The investigation and prosecution of this situation are also made subject to complaint. In these two mentioned cases concerning the sexual assault offence, it is also possible to withdraw the complaint.

One of the most frequently wondered situations regarding the sexual assault offence is active repentance. Active repentance, by its nature, is not an institution applicable to every type of offence. For active repentance to be applicable, there must first be a provision for active repentance related to the relevant offence in the law. Since the legislator has not regulated the institution of active repentance for the sexual assault offence, it has no scope for application. It is also not included in the scope of conciliation offences regulated in the law.

The statute of limitations for prosecution is divided into two. If the offence is committed through sexual molestation and the right to complain has been exercised, the statute of limitations for prosecution is eight years. In all other basic and aggravated forms of the offence, the statute of limitations for prosecution is fifteen years.

Proof and Slander in Sexual Assault Offence

For the proof of the offence, the parties are free to resort to all kinds of legal evidence. In this context, it is possible for the victim to have the extent and scope of the sexual assault determined by a forensic report or a medical examination report. For the proof of the offence, any audio, text, or image sent via social media accounts or messaging applications like WhatsApp can be presented as evidence.

Furthermore, to the extent required by the circumstances, the court's request for the parties' phone signals and the determination of their locations on the day and time of the incident are also crucial elements in clarifying the offence. These means of proof are not only important for the victim. They can also be used by the person who is a suspect or defendant in the alleged offence to prove their innocence.

A person who slanders another, knowing that the person has not committed an offence, with the aim of initiating an investigation or prosecution against them, becomes the perpetrator of the slander offence. If a person falsely accused of committing sexual assault is convicted, and this situation is subsequently revealed, the person wrongly convicted will be acquitted of the sexual assault offence.

Competent Court

For acts remaining at the level of sexual molestation, the Criminal Court of First Instance is competent. All other cases fall within the jurisdiction of the Assize Court.

Relevant Supreme Court Decisions

Decision 1:

“Regarding the appeal review of the judgment rendered against the defendant ... for the offence of simple sexual assault;

Considering the trial conducted, the evidence collected and presented in the judgment, the court's conviction and discretion formed in accordance with the results of the investigation and prosecution, and the content of the examined file, the other grounds for appeal, which are deemed unfounded, are rejected,

However; considering that the defendant's act of approaching the complainant walking on the road from behind and stroking her left hip with his hand was sudden, intermittent, and short-lived, thus remaining at the level of sexual molestation, and taking into account the amendments made to offences against sexual inviolability by Law No. 6545, which was published and entered into force on 28.06.2014, the judgment should have been rendered in accordance with the more favorable law to be determined, instead of in writing, which is contrary to law.

Therefore, the appeal objections of the defendant ... are found to be well-founded, and the judgment is hereby REVERSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, with due regard to Article 8/1 of Law No. 5320, by unanimous vote on 24.06.2019.” *Supreme Court 14th Criminal Chamber, 2015/5877 E. 2019/10306 K.*

Decision 2:

“Upon review of the judgment rendered against the defendant for the act of sexual assault against the victim ...; Given the victim's statements at various stages that on the day of the incident, when she went to the defendant's room, he unzipped his trousers and exposed his sexual organ to her, and as she passed by him to leave the room, he attempted to stroke her lower back, and considering that the issue of physical contact remained in doubt based on the victim's statements, it was necessary to clarify this matter with the victim in an unequivocal manner before determining the legal status of the defendant. Therefore, rendering a written judgment with an incomplete examination, without due regard to this necessity, is contrary to law. Thus, the appeal objections of the defendant's counsel are found to be well-founded, and the judgment is hereby REVERSED in accordance with Articles 321 and 326 of the Code of Criminal Procedure No. ..., with due regard to Article 8/1 of Law No. ..., by unanimous vote on 21.05.2019.” *Supreme Court 14th Criminal Chamber, 201/8668 E. 2019/9913 K.*

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy