The crime of sexual intercourse with a minor is regulated under the section on Crimes Against Sexual Immunity in the Turkish Penal Code (TCK).
The crime of sexual intercourse with a minor is defined in Article 104 of the TCK as follows: A person who engages in sexual intercourse with a child who has completed the age of fifteen, without coercion, threat, or deceit, shall be punished with imprisonment from two to five years upon complaint.
Condition of Being Dependent on Complaint
This crime is one that requires a complaint for prosecution. The person who has the right to file a complaint is the child who has completed the age of fifteen and with whom the sexual intercourse took place. The victim can exercise their right to complain within six months from the day they become aware of the act and the perpetrator. In cases defined as aggravated circumstances in the law, investigation and prosecution are carried out ex officio, and the complaint requirement is waived.
Mediation Institution
Mediation cannot be conducted in the crime of sexual intercourse with a minor. This crime is a public offense and is punishable even if committed with the consent of the victim. Therefore, mediation provisions do not apply to this crime.
The Intent and Negligence Aspect of the Crime
This crime can only be committed intentionally. The intent must be directed both toward the sexual act and the age of the victim. The perpetrator must know that the person they engage in sexual intercourse with is under 18 years old. If they do not know—meaning they believe the person is 19 years old—whether the perpetrator bears criminal liability is determined according to the provisions on mistake.
Supreme Court, 14th Criminal Chamber
Case No: 2011/8556 – Decision No: 2013/810, Date: 30.01.2013
In the case where the accused, aged between 15 and 18, eloped with the victim who was shortly to turn 15, and engaged in a consensual relationship, followed by an official marriage with a child born to them, and where the accused’s father, M. A., who was acquitted in the same trial, stated during the investigation phase in a declaration dated 24.03.2008 received from the Chief Public Prosecutor’s Office that he believed the victim to be 15-16 years old, and given that forensic reports noted that bone age and appearance may differ sometimes due to hormonal development and nutrition, it was necessary to determine, pursuant to Article 30 of the Turkish Penal Code (TCK), whether the accused’s mistake regarding the victim’s age existed, specifically whether it could be understood that the victim appeared younger than 15 at the time of the offense. Considering their social and cultural circumstances, it had to be examined whether it was possible for the accused to be mistaken about the victim’s age. The court should have assessed all evidence in the file together with its own observations, and if necessary, ordered an expert examination on this issue, and then determined the legal status of the accused accordingly. However, a judgment was rendered in writing with an incomplete examination.
This was against the law, and since the defense attorneys’ appeals were thus found to be justified, it was decided by majority vote on 30.01.2013 to REVERSE the judgment pursuant to Article 321 of the Criminal Procedure Code (CMUK), considering Article 8/1 of Law No. 5320.
An important issue regarding the crime of sexual intercourse with a minor is whether the victim’s consent to the act was valid, in other words, whether there was any deception involved. The deception referred to here must be such that it nullifies the victim’s consent. For example, statements like “We will be together forever,” “I will never leave you,” or “I love you” are not considered by the Supreme Court as deception that would eliminate the victim’s free will.
Aggravating Circumstances Affecting the Crime
There are two aggravating circumstances that increase the penalty for the crime of sexual intercourse with a minor:
- If the crime is committed by a person who is legally prohibited from marrying the victim, a prison sentence of ten to fifteen years is imposed without requiring a complaint.
As can be seen, while the lawmaker foresees imprisonment from two to five years in the first paragraph of the crime of sexual intercourse with a minor, this provision prescribes imprisonment from ten to fifteen years. This provision constitutes an aggravating circumstance concerning anyone who is legally prohibited from marrying the minor victim.
If the perpetrator of the crime is a person who has undertaken the care of the child before adoption or who is responsible for protection, care, and supervision within the framework of a foster family relationship, a prison sentence of ten to fifteen years is imposed without requiring a complaint.
Attempt to Commit a Crime
The perpetrator’s criminal liability regarding attempt is determined according to Article 35 of the Turkish Penal Code (TCK).
Article 35 of the TCK:
(1) A person who begins to directly execute a crime they intend to commit through appropriate acts but cannot complete it due to reasons beyond their control shall be held responsible for the attempt.
(2) In the case of an attempted crime, the perpetrator shall be punished with imprisonment from thirteen to twenty years instead of aggravated life imprisonment, or imprisonment from nine to fifteen years instead of life imprisonment, depending on the severity of the damage or danger caused. In other cases, the penalty is reduced from one-quarter to three-quarters.
However, here it is necessary to focus on voluntary abandonment. If the perpetrator voluntarily abandons the execution acts—for example, having performed acts prior to sexual intercourse but refraining from the actual intercourse—then Article 36 of the TCK applies. Article 36 regulates voluntary abandonment. According to it, if the perpetrator voluntarily abandons the execution acts of the crime or prevents the completion of the crime or the occurrence of the result by their own efforts, they shall not be punished for the attempt; however, if the completed part constitutes a crime in itself, they shall only be punished for that crime.
Supreme Court, 14th Criminal Chamber
Case No: 2011/9207 – Decision No: 2013/2448, Date: 11.03.2013
Following the trial of the defendant … for the qualified sexual abuse of a child in a manner that would harm the child’s physical or mental health, it was accepted that the act constituted an attempt to commit the crime of sexual intercourse with a minor. The appeal of the judgment dated 23.09.2008, numbered 2008/139 (file) and 2008/177 (decision), issued by the Ünye High Criminal Court regarding the defendant’s conviction for this crime, was requested by the complainant’s representative and the defendant’s counsel to be reviewed by the Supreme Court within the prescribed time. The case file was sent to the Chamber with the notification from the Supreme Court Prosecutor’s Office, and upon review, the following was considered:
According to the facts and all the contents of the file, it was understood that the defendant, who intended to have sexual intercourse with the victim, voluntarily abandoned the act when the victim expressed pain and refusal. However, without considering that sexual acts of a non-coital nature would not constitute a crime when taking into account the victim’s age and consent, a conviction was made instead of acquittal. This is against the law. Since the defense counsel’s appeals were found justified on this basis, it was unanimously decided on 11.03.2013 to REVERSE the judgments concerning the defendant pursuant to Article 321 of the Criminal Procedure Code (CMUK), considering Article 8/1 of Law No. 5320.
Execution Regime
Different penalties are applied depending on the severity of the crime of sexual intercourse with a minor. For example, a person who has sexual intercourse with a minor may be sentenced to imprisonment, while a person who repeats the same offense may face harsher penalties. Since the penalties for the crime of sexual intercourse with a minor cannot be less than one year, a judicial fine cannot be imposed alone.
The postponement of the announcement of the verdict is not applicable in crimes that require a sentence of more than two years; therefore, it is not applied except in the simple form of the offense.
Sample Supreme Court Decisions
Regarding the defendants, the decisions to postpone the announcement of the verdict given under Article 231/5 of the Criminal Procedure Code No. 5271 for the crimes of sexual intercourse with a minor, abduction, and unlawful detention of a child are subject to objection under Article 231/12 of the same Code. However, due to the lack of the right to appeal and the rejection of the objection made locally by the Konya 5th High Criminal Court with its decision dated 06.10.2015 and file number 2015/865, and also considering that the victims, who were over fifteen years old at the time their statements were taken during the prosecution phase, declared that they did not file complaints against the defendants regarding the incident, and since the representatives appointed due to minority do not have the right to appeal the decisions of dismissal regarding the same offenses, the appeals submitted were REJECTED pursuant to Article 8/1 of Law No. 5320 and Article 317 of the Criminal Procedure Code No. 1412 by unanimous decision on 04.07.2019.
(Supreme Court, 14th Criminal Chamber, Case No: 2019/3869, Decision No: 2019/10603)
The judgment given by the first instance court was appealed, and the regulations introduced by Law No. 6545, which was published and came into force on 28.06.2014 and amended the laws regarding crimes against sexual inviolability, were also taken into consideration. The file was examined and the necessary was considered:
After the conviction for the crime of sexual intercourse with a minor, the annulment decision given by the Constitutional Court regarding Article 53 of the Turkish Penal Code No. 5237, dated 24.11.2015 and published in the Official Gazette No. 29542, with the decision dated 08.10.2015, Case No. 2014/140 and Decision No. 2015/85, was deemed possible to be taken into account at the enforcement stage.
The claims and defenses were analyzed and evaluated considering the hearing; acquittal and the elements of the proven acts were properly described and applied. Therefore, the appeals of the defendant’s counsel and the victim’s representative, which were found to be unfounded, were rejected. The acquittal decisions regarding the crimes of property damage and deprivation of liberty, as well as the conviction for the crime of sexual intercourse with a minor, were UPHELD unanimously on 11.10.2016.
(Supreme Court, 14th Criminal Chamber, Case No: 2014/5697, Decision No: 2016/6991)
According to the scope of the defendant’s appeal, regarding the rejection of the appeal requests related to the defendant’s convictions for the crimes of sexual intercourse with a minor and violation of the inviolability of the residence, it was understood that there was no opinion in the notification of the Supreme Court Chief Public Prosecutor’s Office dated 20/10/2018 and numbered 2018/77568.
Therefore, it was unanimously decided on 31/10/2018 that no decision should be made at this time regarding the appeals of the complainant’s representative and the defendant’s counsel, and the file should be returned to the Supreme Court Chief Public Prosecutor’s Office for the preparation of an additional notification concerning the defendant’s appeal against the rejection decisions of the appeal requests related to the defendant’s convictions for the crimes of sexual intercourse with a minor and violation of the inviolability of the residence, without examining the file.
(Supreme Court, 18th Criminal Chamber, Case No: 2018/7146, Decision No: 2018/13899)
