“The crime of child sexual abuse is one of the most serious offenses against the physical and psychological integrity of children. The Turkish Penal Code specifically regulates this crime in Article 103, aiming to protect children and safeguard the rights of the victimized children.”
Turkish Penal Code, Article 103:
(1) A person who sexually abuses a child shall be punished with imprisonment from eight to fifteen years. If the sexual abuse remains at the level of molestation, the punishment shall be imprisonment from three to eight years. If the child has not yet reached the age of twelve, the penalty shall not be less than ten years in cases of abuse, and not less than five years in cases of molestation. In cases where the perpetrator of a molestation-level offense is also a child, investigation and prosecution depend on the complaint of the victim, their guardian, or custodian. By the term “sexual abuse”;
a) Any sexual act committed against a child who has not yet reached the age of fifteen, or who, despite having reached that age, has not developed the capacity to comprehend the legal meaning and consequences of the act.
b) Sexual acts committed against other children solely by means of force, threat, deceit, or any other factor that impairs the child’s will.
(2) If the sexual abuse is committed by inserting an organ or any other object into the body, the perpetrator shall be sentenced to imprisonment for no less than sixteen years. If the victim has not yet reached the age of twelve, the sentence shall not be less than eighteen years.
(3) If the offense is committed:
a) By multiple persons together,
b) By taking advantage of the convenience provided by environments where people are required to live collectively,
c) Against a person related by blood or affinity up to the third degree, or by a stepfather, stepmother, stepsibling, or adoptive parent,
d) By a guardian, educator, instructor, caregiver, foster family, or any person providing health services or having an obligation of protection, care, or supervision,
e) By abusing the influence of a public office or employment relationship,
the penalty to be imposed according to the above paragraphs shall be increased by half.
(4) If the sexual abuse is committed against children specified in paragraph (1)(a) by force or threat, or against children specified in paragraph (1)(b) by using a weapon, the penalty to be imposed according to the above paragraphs shall be increased by half.
(5) If the force and violence used in the sexual abuse cause the severe consequences of intentional injury, the provisions related to the crime of intentional injury shall also apply.
(6) If the offense results in the victim entering a vegetative state or death, aggravated life imprisonment shall be imposed.
This provision aims to punish any behavior that violates the sexual integrity of a child. In this text, the legal definition, elements, and penal provisions of the crime of child sexual abuse will be examined in detail.
Legal Definition of the Crime
In Article 6, paragraph 1(b) of the Turkish Penal Code, a child is defined as “a person who has not yet reached the age of 18.” This age limit serves as the primary criterion in legal assessments concerning the sexual abuse of children. However, the law adopts a more sensitive approach to the protection of children and categorizes children into three distinct age groups for the purposes of sexual abuse offenses:
1. Children under the age of 15: Any sexual act directed at children in this age group is considered sexual abuse without the need for consent.
2. Children who have reached the age of 15 but have not developed the capacity to comprehend the legal meaning and consequences of the act: In this case as well, any sexual act committed against the child constitutes sexual abuse regardless of consent. Whether the child is capable of understanding the legal meaning and consequences of the act is determined by an expert report obtained from the Forensic Medicine Institute (ATK) or a specialist report from a hospital ordered by the court.
3. Children who have reached the age of 15 but have not yet turned 18: Sexual situations involving children who are over 15 and have developed the capacity to understand events are not always considered as the crime of “abuse.” For an act directed at children in this age group to constitute sexual abuse, it must be carried out by force, threat, deception, or other means that weaken the child’s capacity to make decisions. Here, the law primarily protects the child’s right to freely make their own sexual decisions rather than their physical integrity.
For example, a sexual act performed on a 16-year-old by exerting pressure or through deception clearly constitutes sexual abuse. However, if a child of the same age engages in a sexual relationship entirely of their own free will, without any coercion or manipulation, this situation cannot be directly classified as sexual abuse. In such cases, the offense of “Sexual Intercourse with Minors” may be applicable.
Elements of the Crime
1- Perpetrator: The crime of child sexual abuse is not, as commonly believed in society, a crime that can only be committed by males. Legally, the perpetrator of this crime can be female, male, or a transgender individual. What matters is not the gender of the perpetrator, but whether the act meets the elements of the crime as defined in the Turkish Penal Code. Therefore, a sexual act directed at a child by a woman, under the conditions prescribed by law, can also be considered child sexual abuse.
2- Victim: The victim of sexual abuse, within the scope of the Turkish Penal Code, can only be a child. Sexual acts directed at a person who has reached the age of 18, if other conditions are met, can only be evaluated within the framework of sexual assault or sexual harassment.
3- Act: For the crime of sexual abuse to occur, the perpetrator must engage in behaviors directed at the victim with a sexual purpose. The law intentionally defines the concept of “sexual behavior” broadly. The scope of the crime is evaluated not based on the physical movements but on the sexual nature of the act and the intention of the perpetrator. Supreme Court (Yargıtay) decisions support this understanding, accepting the existence of the crime if the act is objectively sexual in content and performed with lust. What is crucial for the act to constitute a crime is that the perpetrator acted with the intent to achieve a sexual purpose. For example, a medical examination performed for medical purposes is not considered sexual abuse, whereas the same act performed for sexual gratification constitutes a crime.
4- Legal Interest Protected by the Crime: The legal subject of a crime is the legal value or interest that is harmed by the commission of the crime. In other words, it is the fundamental right or interest that the legislature seeks to protect and that is violated by the crime. In the case of child sexual abuse, the protected interest is the sexual integrity of the child, who, due to their age and mental development, lacks the capacity to understand and evaluate sexuality in a healthy manner. Therefore, the presence or absence of the child’s consent is irrelevant for the establishment of this crime.
Simple and Aggravated Forms of the Crime
The simple form of the crime of child sexual abuse is regulated in Article 103, paragraph 1 of the Turkish Penal Code. According to this provision, all sexual acts committed against the body of the victim child without inserting an organ or any other object constitute the simple form of child sexual abuse.
This type of offense is based on acts carried out by the perpetrator with a sexual purpose targeting the sexual integrity of the victim. Whether the act constitutes “simple sexual abuse” or remains at the level of “molestation” is assessed individually in each case. Determining factors include the duration and intensity of contact, whether it is continuous, the areas of the victim’s body involved, and the manner in which the act is carried out.
If the perpetrator’s behavior is sudden, intermittent, superficial, and isolated, this indicates that the sexual abuse remained at the level of molestation and warrants a lighter penalty. However, if the act is directed at the victim’s body with a strong intent for sexual gratification, involves multiple contacts, and has a continuing nature, the perpetrator’s actions should be considered under the scope of simple sexual abuse. The Supreme Court (Yargıtay) has consistently emphasized this distinction in its decisions, highlighting that the legal nature of the act should be determined by evaluating the perpetrator’s mode of behavior, the continuity between acts, and the age of the victim together.
If the act of sexual abuse is carried out by inserting an organ or any object into the victim’s body, it no longer constitutes simple sexual abuse but rather aggravated sexual abuse. This situation, regulated in Article 103, paragraph 2 of the Turkish Penal Code, is considered a more severe form of the crime and requires that the penalty imposed on the perpetrator be determined at a higher level.
The phrase “inserting an organ or any object into the body,” as stated in the relevant legal provision, encompasses the forcible insertion of an organ (such as a finger or tongue) or any object (such as a piece of wood, plastic bottle, or pen) into the victim’s body through vaginal, anal, or oral routes. It is not required for the perpetrator to have the purpose of sexual pleasure or gratification for this type of offense to be established.
Aggravating Circumstances of the Crime
Article 103 of the Turkish Penal Code explicitly states that there are various aggravating circumstances for the crime of sexual abuse against children, and that the penalty shall be increased in such cases.
Turkish Penal Code, Article 103/Paragraph (3):
If the offense is committed:
a) By multiple persons together,
b) By taking advantage of the convenience provided by environments where people are required to live collectively,
c) Against a person related by blood or affinity up to the third degree, or by a stepfather, stepmother, stepsibling, or adoptive parent,
d) By a guardian, educator, instructor, caregiver, foster family, or any person providing health services or having an obligation of protection, care, or supervision,
e) By abusing the influence of a public office or employment relationship,
the penalty to be imposed according to the above paragraphs shall be increased by half.
(4) If sexual abuse is committed against children specified in paragraph (1)(a) by force or threat, or against children specified in paragraph (1)(b) by using a weapon, the penalty to be imposed according to the above paragraphs shall be increased by half.
(5) If the force and violence used in the sexual abuse cause the severe consequences of intentional injury, the provisions related to the crime of intentional injury shall also apply.
(6) If the offense results in the victim entering a vegetative state or death, aggravated life imprisonment shall be imposed.
These provisions identify aggravating factors that are of particular importance in the protection of children. Situations such as the offense being committed by multiple persons, the abuse of communal living spaces, or the exploitation of familial or caregiving relationships increase the perpetrator’s liability and require higher penalties to protect public safety. Similarly, if the perpetrator is a public official and abuses their authority, this represents another serious circumstance that amplifies the impact on the victim. The use of force, threats, or weapons increases the violent nature of the crime, thereby necessitating harsher criminal sanctions. These rules are explicitly established in the law to ensure the safety of children and to enhance deterrence against perpetrators.
Mistake Regarding the Victim’s Age
The crime of child sexual abuse is an intentional offense and cannot be committed negligently. Therefore, even if the victim has not yet reached the age of 15, if the perpetrator engages in sexual relations believing that the victim is 15 years old and with the victim’s consent, the element of intent is not established in the concrete case, and the perpetrator must be acquitted. Whether the act carries the element of intent must be assessed individually in each case.
“…According to the article provision and in light of the above-mentioned decision, it was understood that the juveniles in question, having been mistaken regarding the age of the victim and believing she was older than 15, engaged in acts that did not reach the level of sexual intercourse. Therefore, it was concluded that these juveniles did not commit the crime of child sexual abuse within the scope of Article 103/1 of the Turkish Penal Code (TCK No. 5237), and it was necessary to acquit them separately of the charges according to Articles 30/1, 103/1 of TCK No. 5237 and Article 223/2-a of the Criminal Procedure Code No. 5271.”
It was understood that in the judgments concerning the juveniles, the evidence and facts were clearly presented and linked, and the reasoning was legally appropriate. Accordingly, the appeals regarding the judgments established following the review by the first instance court upon annulment were found to be unfounded.
(Supreme Court of Appeals, 9th Criminal Chamber, Case No. 2022/14107 E., 2023/2680 K., 03.05.2023)
“…Considering that the identification card presented by the complainant to the law enforcement officers, which contained her photograph and was issued in her name, indicated her date of birth as 1991, and that witness … … stated that the complainant was known in the environment as … born in 1991, as well as the defendants’ statements during their interrogation on 14.11.2012 claiming that they did not know the victim was underage, and taking into account the entire file content, it should have been concluded that the defendants were mistaken about the victim’s age at the time of the incident. Consequently, the provisions of Articles 30 and 102/1 of the Turkish Penal Code No. 5237 should have been applied. However, due to an error in determining the legal qualification of the offense, conviction decisions were wrongly issued under Articles 103/2-3 and 35 of the same Code.
In light of this, and given that the defendants’ attorneys’ appeals are justified, the judgments are annulled pursuant to Article 321 of the Code of Criminal Procedure No. 1412, considering Article 8/1 of Law No. 5320.”
(Supreme Court of Appeals, 14th Criminal Chamber, Case No. 2016/4633 E., 2020/4042 K., 14.10.2020)
Complaint Period, Statute of Limitations, and Competent Court
Sexual abuse offenses are not subject to complaint and are investigated ex officio by the public prosecutor. The only exception to this rule is sexual abuse committed through molestation when the perpetrator is also a minor. In this case, the offense is subject to complaint, and the complaint period is six months from the date the crime was committed. If the complaint is not filed by the victim’s parent or guardian within this period, no investigation will be conducted. Sexual abuse offenses are not included among offenses that can be resolved through reconciliation. For the basic form of this offense, the statute of limitations for prosecution is 15 years. The competent court for sexual abuse committed through molestation is the Criminal Court of First Instance (Asliye Ceza Mahkemesi), whereas for all other sexual abuse offenses, the competent court is the High Criminal Court (Ağır Ceza Mahkemesi).
Suspension of Pronouncement of Judgment, Probation, and Judicial Fine
Under Article 103 of the Turkish Penal Code, which regulates the crime of child sexual abuse, a person who sexually abuses a child is punishable by imprisonment for a term of eight to fifteen years. If the sexual abuse remains at the level of molestation, the penalty is imprisonment for three to eight years. The same article also provides that if the victim has not yet reached the age of twelve, the penalty shall not be less than ten years for sexual abuse and not less than five years for molestation.
For these offenses, the imposed prison sentences cannot, regardless of their duration, be converted into judicial fines, suspended, or subject to a postponement of the pronouncement of judgment.
Child Sexual Abuse – Acquittal Decisions
“…Regarding the judgment against the defendant for the crime of child sexual abuse through molestation against the complainant …, considering the manner and duration of the incident, the defense, and the entirety of the case file, it was determined that the defendant’s act of stroking the victim’s arm while receiving money could not be established as having been carried out with a sexual purpose. Furthermore, taking into account the complainant’s statements during the proceedings that the defendant did not intentionally touch her chest and that she believed his hand merely brushed against her, it is understood that there is no sufficient, conclusive, and convincing evidence, free from any doubt, to support the defendant’s conviction for the alleged offense. Therefore, issuing a conviction instead of acquittal is legally inappropriate…”
(Supreme Court of Appeals, 9th Criminal Chamber, Case No. 2021/13141 E., 2024/10008 K., 25.11.2024)
“…The judgments issued by the first instance court were appealed, and the file was examined taking into account the content of the appeal and the legal regulations in force up to the date of review, and the matter was duly considered: Considering the manner and timing of the incident, the genital and physical reports pertaining to the complainant …, the defense, and the entirety of the case file, it is observed that, apart from the abstract and contradictory statements of the complainants … and … which are not supported by other evidence, there is no sufficient, conclusive, and convincing evidence, free from any doubt, to establish that the juveniles involved in the case committed the alleged offenses. Therefore, issuing convictions instead of acquittals is contrary to the law. Since the appeals of the juveniles’ defense attorneys are justified in this regard, the judgments are annulled pursuant to Article 321 of the Code of Criminal Procedure No. 1412, considering Article 8/1 of Law No. 5320.”
(Supreme Court of Appeals, 14th Criminal Chamber, Case No. 2016/12405 E., 2020/4609 K., 02.11.2020)
“…Regarding the public prosecutions filed against the defendant for the crimes of child sexual abuse and deprivation of liberty, based on the act of kissing his underage girlfriend, who was fifteen years old at the time of the incident, in a secluded place after meeting her and driving there: the court, taking into account that the defendant was mistaken about the victim’s age, and considering that, apart from the victim’s statements which are not supported by any other evidence, there is no sufficient, conclusive, and convincing evidence to establish that the acts were carried out by force, found that convicting the defendant instead of acquitting him for child sexual abuse and deprivation of liberty—crimes which were not legally constituted under the changed qualifications of the offense—was contrary to the law. Therefore, the appeals of the defendant’s counsel and the complainant’s representative were upheld, and the judgments were annulled pursuant to Article 321 of the Code of Criminal Procedure No. 1412, in light of Article 8/1 of Law No. 5320.”
(Supreme Court of Appeals, 14th Criminal Chamber, Case No. 2016/8657 E., 2020/5107 K., 18.11.2020)
“…Considering the victim’s statements during the proceedings, witness testimonies, the defense, the court’s acceptance, and the entire case file, it was determined that there is no sufficient, conclusive, and convincing evidence to establish that the defendant, who manufactures electric meter boxes, acted with sexual intent when he held the victim on his lap to read the meter codes he could not read that day due to not having his glasses. Therefore, convicting the defendant instead of acquitting him for the alleged offense was contrary to the law. Accordingly, the appeals of the defendant’s counsel and the Ministry’s representative were upheld, and the judgment was annulled pursuant to Article 321 of the Code of Criminal Procedure No. 1412, in light of Article 8/1 of Law No. 5320.”
(Supreme Court of Appeals, 9th Criminal Chamber, Case No. 2021/24509 E., 2021/9117 K., 10.11.2021)
“…Considering the manner and timing of the incident, the fact that the victims allegedly wanted to get into the defendant’s vehicle again approximately one week after the first incident they claimed occurred, the victims’ contradictory statements during the proceedings, the defense, and the entirety of the case file, it was determined that there is no sufficient, conclusive, and convincing evidence, free from any doubt, to justify the defendant’s conviction. Therefore, issuing convictions instead of acquittals was contrary to the law. In this regard, the appeals of the defendant’s counsel and the representative of the complainant … were upheld, and the judgments were annulled pursuant to Article 321 of the Code of Criminal Procedure No. 1412, in light of Article 8/1 of Law No. 5320.”
(Supreme Court of Appeals, 9th Criminal Chamber, Case No. 2022/9847 E., 2022/8868 K., 11.10.2022)
Other Supreme Court Decisions
“…Considering the victim’s statements during the proceedings, witness testimonies, the defense, and the entirety of the case file, the defendant’s acts of touching the victim’s sexual organs at different times and passing behind her to touch her with his hips, which involved physical contact, occurred briefly, suddenly, and intermittently. Since this was not recognized as remaining at the level of molestation in a continuous manner, the court erred in determining the qualification of the offense and issued a conviction for child sexual abuse. This was contrary to the law. Accordingly, the appeal of the defendant’s counsel was upheld, and by the Samsun Regional Court of Justice, 3rd Criminal Chamber, in its decision dated 08.03.2019, Case No. 2018/3261, Decision No. 2019/707, the appeal was accepted, and the conviction for child sexual abuse was annulled pursuant to Articles 302/2-4 of the Code of Criminal Procedure No. 5271.”
(Supreme Court of Appeals, 14th Criminal Chamber, Case No. 2019/6239 E., 2020/3755 K., 07.10.2020)
“…It was established that the defendant hugged the victim … several times for sexual purposes, that the victim was uncomfortable with this behavior and stated so, and that after the victim expressed discomfort when the defendant hugged her and touched her private areas, the defendant ceased his actions towards the victim … Accordingly, it was determined that the defendant committed the offense of child sexual abuse at the level of molestation by hugging the victim for sexual purposes and touching her private areas during such hugs. Therefore, the defendant was required to be punished under Article 103/1, third sentence of the Turkish Penal Code (TCK). Since the defendant had an instructive obligation towards the victim, his sentence was increased by half pursuant to Article 103/3-d of the TCK. As the defendant committed the acts multiple times at different occasions under the same criminal intent, his sentence was further increased by one-fourth in accordance with Article 43 of the TCK. Since the defendant did not show remorse during the trial, Article 62 of the TCK was not applied. Although the defendant is a public official, because the act was committed against children who could not comprehend this fact and in accordance with the specific provisions of Article 103/3-c, Article 103/3-d was not applied.
Based on this reasoning, the defendant was convicted. In accordance with the notification, the appeals were unanimously rejected on the merits, and the judgment was AFFIRMED.”
(Supreme Court of Appeals, 9th Criminal Chamber, Case No. 2023/10555 E., 2023/7773 K., 27.11.2023)
“…According to the entire case file, the act of the defendant, on the day of the incident, suddenly confronting the victim—who was under sixteen years old—on the street, touching her shoulder, and touching his own sexual organ, was of short duration, sudden, and intermittent, and therefore remained at the level of harassment…” (Court of Cassation, 9th Criminal Chamber, 2021/4441 E., 2022/4849 K., 24.05.2022)
“…According to the First Instance Court, ‘The defendant … and the complainant victim … are distant relatives, living with their families in separate houses facing each other on … Street, … Neighborhood. Due to their family and neighborly relations, they visited each other as families. The defendant’s actions toward the victim, which initially started as a joke, quickly took on a sexual nature. In the presence of their families, he touched the victim’s body, including the front and back private areas, and pinched her (by pressing the flesh between his thumb and forefinger, causing pain). He invited the victim to his home under the pretexts of playing games, installing programs on the computer, or helping open delivery packages, partly because they were relatives and neighbors and partly because they played the same game online.
The defendant called the victim to his home in either October 2020 or January 2021 to play games. In the annex where he kept his motorcycle, he removed the victim’s lower garments and made the victim touch her back private area with his exposed front private area. He repeated these actions twice in his room over the following one or two months. In March 2021, in his room, he again made his front private area touch the victim’s back private area. In March or April 2021, in the upper-floor room with a computer, he performed oral contact with the victim’s front private area. In June 2021, he invited the victim under the pretext of opening delivery packages, removed both his and the victim’s lower garments in the upper-floor room, and ejaculated while making his front private area touch the victim’s back private area.
During some of these incidents at his home, the defendant applied gel from his own front private area to the victim’s back private area. At times, while still clothed, he pulled the victim toward him, hugged her, and touched her. He also made the victim touch his front private area over her clothes in his room.
The victim’s friends, witnesses … and …, noticing messages on the victim’s phone and questioning the reason, learned about the gradual abuse experienced by the victim. They informed their own families, who then notified the victim’s legal guardians, the complainants … and …, leading to the initiation of the investigation following the report on June 30, 2021.
Thus, it was understood that the defendant committed sexual acts exceeding the level of harassment against the victim, who had not yet reached fifteen years of age, constituting child sexual abuse as defined in Articles 102/1-a and 103/1-1 of the Turkish Penal Code (TCK). Additionally, by calling the victim to his home for unlawful sexual purposes and depriving her of her freedom of movement, he committed the offense of deprivation of liberty as regulated in Articles 109/1, 3-f, and 5 of the TCK. As stipulated in Article 43/1 of the TCK, these offenses were committed multiple times in a chain-like manner under the execution of the same criminal intent…’ Based on this reasoning, a conviction was rendered for the charged offense.”
“In the events and findings accepted by the First Instance Court, it has been understood that the Regional Court of Justice found no error. The procedures during the trial were carried out in accordance with the law and procedural rules, and the claims and defenses raised at various stages were presented and discussed in the reasoned judgment together with all the evidence collected. It was determined that the acts were committed by the defendant, and the assessment of conscience was based on definitive data consistent with the documents and information in the case file. The legal characterization of the acts and the corresponding sanctions were correctly determined. Considering the provisions set forth in Articles 288 and 294 of Law No. 5271, and taking into account the definitive unlawfulness grounds listed in Article 289 of the same Law as well as the reasons stated in the appeals filed by the defendant’s counsel and the complainant’s attorney, the evaluation concluded that the appeals lodged by the defendant’s counsel and the complainant’s attorney against the Regional Court of Justice’s decision to dismiss the appeal on its merits were unfounded and therefore rejected…” (Court of Cassation, 9th Criminal Chamber, Case No: 2023/11244 E., Decision No: 2023/8881 K., 26.12.2023)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
ANTALYA CRIMINAL LAW ATTORNEY – ANTALYA FELONY ATTORNEY
Child sexual abuse is one of the most serious crimes, both legally and socially, and it requires a swift and effective legal process to protect the rights of the victimized children. In such cases, it is crucial to collect evidence accurately, take statements with sensitivity, and follow the process with expertise. With the support of an Antalya-based lawyer, the victim and their family can defend their rights in the strongest possible way and ensure that justice is served.
A lawyer specializing in child sexual abuse cases provides professional guidance not only throughout the criminal trial process but also in protecting the victim’s psychological and social rights. At our law office in Antalya, our team of experienced and professional lawyers is always at your service. You can contact us at any time.
