What is Sexual Harassment?

As mentioned above, the fundamental aspect distinguishing the offense of sexual harassment from sexual assault and child sexual abuse is physical contact. If physical contact occurs, it is no longer harassment but assault. The point of distinction from the offense of sexual intercourse with a minor is the person's consent. The offense of sexual intercourse with a minor comes into question if the victim consents. If the victim does not consent, then the offense of abuse will arise. In harassment, however, the victim's lawful consent constitutes a ground for legality.

The mere fact that the act in the concrete case is sexually explicit is not sufficient. Additionally, a specific intent in the form of a sexual purpose is required for the commission of this act. Acts that are sexually explicit but performed solely with the intent to insult the other party's honor are considered the offense of insult, not harassment. Similarly, if there is a specific intent solely to disturb a person's peace and tranquility and a persistent behavior, it is again the offense of disturbing a person's peace and tranquility, not harassment.

Finally, for the offense of harassment to occur, the act must be directed at a specific victim. Acts of public sexual intercourse and exhibitionism, which are not directed at a specific victim or are directed at the public, fall within the scope of indecent acts and obscenity offenses.

📎 Related: Visit our Izmir Criminal Lawyer page for detailed information.

In the offense of sexual harassment, the consent of the interested party may find application as a ground for legality. Lawful consent, given by individuals exercising their sexual freedom, will constitute an impediment to the punishment of this offense. This consent must exist before the criminal act is committed. Consent given after the act has taken place does not eliminate the offense. As a rule, individuals have the power of disposition over their sexual freedoms. However, the exercise of this power of disposition depends on the person being competent to do so.

For example, the consent of someone lacking the capacity for discernment cannot be considered valid consent. Therefore, the consent of individuals under the age of twelve is not valid consent, and the offense is not eliminated. Children between the ages of twelve and fifteen can only exercise their strictly personal rights in relation to this offense, unless their parents' will is more in line with the law and the child's best interest.

Children who have completed fifteen years of age, if they are capable of understanding the legal meaning and consequences of the sexual harassment offense, their consent is lawful, and the perpetrator is not punished.

The basic form of the offense is punishable by imprisonment from three months to two years or a judicial fine, as per the law. The stipulated imprisonment and judicial fine are regulated as alternative penalties. As can be seen, the lower and upper limits of the imprisonment penalty are directly regulated in the article of law. The amount of the judicial fine, however, cannot be less than the lower limit or more than the upper limit stipulated for the relevant offense.

Can the Penalty for Sexual Harassment Vary?

As stipulated for every type of offense, certain qualified circumstances that increase the penalty are also foreseen for the offense of sexual harassment. One of these aggravating circumstances is the harassment offense aggravated by its consequence.

What are the Qualified Circumstances of the Offense of Sexual Harassment?

The qualified circumstances requiring a heavier penalty for sexual harassment and their respective penalties are as follows:

• In cases where the offense is committed against a child, a penalty of imprisonment from six months to three years is imposed. It is more difficult for children to defend themselves against this offense compared to other individuals. Therefore, this regulation is appropriate. While previous regulations imposed penalties without distinguishing between child and adult victims, the commission of this offense against children is now one of the aggravating circumstances. In this qualified circumstance, no judicial fine is stipulated. Only imprisonment can be imposed.
• If the person commits this offense with the facility provided by their public duty, service relationship, or intra-family relationship, the penalty to be imposed is increased by half. The commission of this offense by a public official against a person they deal with due to their duty falls within this scope. Since it is possible and easier for individuals with employer status to exert pressure on service providers, whether the service relationship is verbal or written, the need to protect employees has arisen. The scope of intra-family relationships, as the law explicitly refers to the concept of family, includes only family members. It must also be accepted that the offense can be committed against a spouse.
• If the offense is committed by a guardian, or by educators, instructors, caregivers, foster families, or healthcare providers, or persons with a duty of protection, care, or supervision as listed in the law, the penalty to be imposed is also increased by half. In this context, it is not a requirement for the education-instruction relationship to be based on payment. Similarly, the foster family does not need to be permanent. For example, parents temporarily leaving their children with a neighbor or relative while going to work also falls within this scope. Since the article of law specifies who can be the perpetrator of this offense, this qualified circumstance does not arise in inverse situations. That is, an act committed by a student against their teacher is not considered a qualified circumstance.
• If the offense is committed with the facility provided by working in the same workplace, the penalty to be imposed is also increased by half. In this case, there does not need to be a hierarchical relationship between the perpetrator and the victim; it is sufficient that they work in the same workplace.
• If the offense is committed with the facility provided by mail or electronic communication, the penalty to be imposed is also increased by half. For this qualified circumstance to exist, it is not sufficient for the perpetrator to merely use these means. It is also required that they have benefited from the facility provided by these means. In this context, the perpetrator's ability to conceal their identity and the increased difficulty in their identification while using these means is considered benefiting from the facility.
• If the offense is committed by means of exhibition, the penalty is also increased by half. Distinct from the offense of indecent acts, exhibition within the scope of this offense is not public but directed at a specific person.
• If the victim is forced to quit work, leave school, or separate from their family due to the act of sexual harassment, the penalty to be imposed cannot be less than one year. This situation is the aggravated form of the relevant offense due to its consequence. A reasonable time and a causal link are sought between the offense and the situation of being forced to leave. Furthermore, the criminal act does not need to be continuous; a single instance is sufficient.

Is a Complaint Required for the Penalty of Sexual Harassment?

The legal provision explicitly stipulates that the penalty for the basic form of this offense is subject to the victim's complaint. A complaint can be made by the victim of the offense themselves, in writing or verbally, to the relevant authorities. However, the qualified circumstances of the offense mentioned above are not subject to complaint. Investigations are conducted ex officio by the public prosecutor's office.

What is the Complaint Period for the Offense of Sexual Harassment?

In the basic form of the offense, the victim must file a complaint within 6 months from the date they knew or learned of the act and the identity of the perpetrator. This period is a preclusive period. This means that if the victim does not file a complaint within this period, no investigation or prosecution can be conducted. In the qualified circumstances of the offense, the victim can always file a complaint within the statute of limitations for prosecution. In this case, the complaint constitutes a notification.

What is the Statute of Limitations for Sexual Harassment?

For the qualified circumstances of this offense, the statute of limitations for prosecution is 8 years.

What is the Consequence of Withdrawing a Complaint in the Offense of Sexual Harassment?

In the basic form of the offense, the victim can withdraw their complaint at any time until the judgment rendered by the court becomes final. If the withdrawal of the complaint occurs during the investigation phase, a decision of non-prosecution is issued; if it occurs during the prosecution phase, a decision to dismiss the case is rendered.

How is the Offense of Sexual Harassment Proven?

As with other offenses against sexual inviolability, proving this offense is quite difficult. Therefore, an in-depth investigation must be conducted during the investigation stage. If the victim of harassment is expected to present direct evidence but cannot, and if the offense could have been proven had an investigation been conducted, then rendering a decision in favor of the perpetrator without such an investigation would not be lawful. Conversely, an approach based solely on victim statements, such as "the victim has no valid reason to make a false accusation," would also be an unlawful approach against the perpetrator.

Can a Compensation Lawsuit Be Filed for Sexual Harassment?

It is probable that a person who has been harassed will suffer psychological harm due to the incident. Therefore, especially in situations where this offense occurs in workplaces, it is also possible for material damages to arise due to situations such as job loss or inability to work. The aggrieved person can file a compensation lawsuit for these damages.

Are Public Officials Prosecuted for Sexual Harassment Dismissed?

Receiving a prison sentence of one year or more for the offense of sexual harassment constitutes an impediment to public service. However, a decision to defer the announcement of the verdict does not constitute an impediment to public service. Furthermore, since disciplinary penalties are conducted independently of criminal proceedings, a public official may receive a disciplinary penalty for the committed act even if they are not subject to criminal prosecution.

You can send us your questions regarding sexual harassment via the form at the bottom of the page.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy