In our legal system, the crime of sexual assault or rape, as regulated in Article 102 of the Turkish Penal Code, is defined as subjecting the victim to sexual contact or behavior without their consent by violating their bodily integrity, with the perpetrator aiming to satisfy their sexual urges. Sexual assault is a specifically regulated and serious crime in our law that requires severe penalties. The crime of sexual assault can be committed through means that impair the victim’s will, such as threats or force.
To avoid confusion, the fundamental difference between the crimes of sexual harassment and sexual assault lies in the presence of physical contact. The key difference between sexual harassment and sexual assault is whether physical contact occurs. For sexual assault to occur, physical contact between the perpetrator and the victim must take place. Actions where the perpetrator shows their sexual organs to the victim without physical contact or verbally harasses the victim without contact constitute sexual harassment, not sexual assault.
Regarding the victim of sexual assault or rape, the victim can be any person over the age of 18. Both the victim and the perpetrator can be female, or one female and one male. However, if the victim is under 18 years old, the crime is not sexual assault but rather child sexual abuse, which carries more severe penalties.
The legislator, by regulating the crime of sexual assault, has protected the concepts of "sexual freedom" and "bodily integrity." According to Article 102 of the Turkish Penal Code, the crime of sexual assault can occur in the following cases:1- Violating a person’s sexual integrity by coercion,
2- Violating sexual integrity by inserting an organ or any other body part,
3- Violating a person’s sexual integrity through the use of the sexual organ.
According to the first article, if a person is forced to undergo an act that violates their sexual integrity, it is considered a sexual assault crime. If the perpetrator forces the victim to engage in a sexually meaningful act or threatens them to do so, this constitutes sexual assault.
In the second article, sexual assault occurs when the perpetrator violates the victim’s body by inserting any part of their body (which can be a hand, finger, or sexual organ). For example, if the perpetrator inserts a body part into the victim’s nose, ear, or any other part of their body, this will be regarded as sexual assault.
In the third article, sexual assault takes place when a person’s sexual organ is used to violate another person’s sexual freedom. Forcing the victim to have sexual intercourse with the perpetrator’s sexual organ is considered rape. In our legal system, the crime of sexual assault is regulated under Article 102 of the Turkish Penal Code.
Article 102-
(1) A person who violates the bodily integrity of another through sexual acts shall be punished with imprisonment from five to ten years upon the complaint of the victim. If the sexual act remains at the level of harassment, the punishment shall be imprisonment from two to five years.
(2) If the act is committed by inserting an organ or any other object into the body, the punishment shall be imprisonment of not less than twelve years. In cases where this act is committed against a spouse, the initiation of investigation and prosecution depends on the victim’s complaint.
(3) If the crime is committed;
a) Against a person who is unable to defend themselves physically or mentally,
b) By abusing the influence provided by public office, guardianship, or service relationship,
c) Against a person related by blood or marriage up to the third degree, or by a stepfather, stepmother, stepsibling, adopter, or adoptee,
d) With a weapon or together by multiple people,
e) By taking advantage of the facilities provided by environments where people are required to live together in groups,
the penalties prescribed in the above paragraphs shall be increased by half.
(4) If the force and violence used in the sexual assault cause serious consequences of intentional injury, the provisions related to the crime of intentional injury shall also apply.
(5) In the event that the victim falls into a vegetative state or dies as a result of the crime, aggravated life imprisonment shall be imposed.
The crime of sexual assault is punished according to the provisions set forth in Article 102 of the Turkish Penal Code. According to this article, a person proven to have committed the crime of sexual assault is sentenced to imprisonment for a term of 5 to 10 years. If the sexual behavior remains at the level of harassment, the perpetrator is sentenced to imprisonment for a term of 2 to 5 years.
If the act is committed by inserting an organ or any other object into the body, the perpetrator is sentenced to imprisonment for not less than 12 years. Additionally, if the sexual assault crime is committed:
- Against a person who is physically or mentally defenseless,
- By abusing the influence provided by a public duty, guardianship, or service relationship,
- Against a person who is related by blood or marriage up to the third degree,
- By a stepmother, stepfather, or stepchild,
- With a weapon or together with multiple people,
- By taking advantage of the convenience provided by environments where people are obliged to live together collectively, such as hotels, hostels, or dormitories,
the penalty to be imposed is increased by half.
What is the Crime of Simple Sexual Assault?
The crime of simple sexual assault occurs when sexual acts directed at the victim’s body do not reach the level of sexual intercourse and are committed solely by way of molestation. Situations such as the perpetrator kissing or caressing the victim without consent, briefly placing their hand on the victim’s chest and pulling it away, or rubbing against the victim are considered sexual assault by molestation. In simple sexual assault, the behaviors do not reach the level of sexual intercourse and do not involve intensity or continuity. Sexual assault by molestation, or simple sexual assault, is defined as the mildest form of sexual assault that requires the least severe punishment. If the sexual assault remains at the level of molestation and is not committed as continuous behavior, the perpetrator is sentenced to imprisonment for 2 to 5 years. Factors such as the manner in which the crime was committed, the victim’s age and gender, the conditions under which the crime was committed, the purpose of the crime, and the perpetrator’s degree of fault are taken into account when determining the penalty.
The investigation and prosecution of simple sexual assault crimes depend on a complaint. If the victim does not file a complaint regarding the sexual assault committed by molestation, no investigation or prosecution can be conducted for these crimes. The complaint period is 6 months from the time the act and perpetrator are learned. Additionally, investigations and prosecutions initiated upon a complaint end if the victim withdraws their complaint.
On the night of the incident, the defendant, while walking home after work with the 31-year-old plaintiff who worked at the same place, suddenly touched the plaintiff’s hip. Since this act remained at the level of molestation, it constituted the simple sexual assault crime as defined in Article 102/1 of the Turkish Penal Code No. 5237, which was in force at the time of the crime. Considering the lower and upper limits of the prison sentence prescribed in the said article, which ranges from 2 to 7 years, the court sentenced the defendant to 2 years and 6 months of imprisonment, giving reasons. However, following the ruling, with the enactment of Law No. 6545 on 28.06.2014, Article 58 amended the second sentence of the first paragraph of Article 102 of the Turkish Penal Code No. 5237, accepting that “if the sexual behavior remains at the level of molestation, a prison sentence from 2 to 5 years shall be imposed.” Accordingly, since the upper limit of the base penalty to be determined by the court has been reduced from 7 years to 5 years, considering this amendment in favor of the defendant, it is mandatory for the court to re-evaluate the case. The failure to do so is grounds for annulment. (Supreme Court 14th Criminal Chamber – Decision: 2016/6287).
Simple Sexual Assault Crime by Touching
It is understood from the statements of the complainant and witnesses that the defendant violated the complainant’s bodily integrity by grabbing her arm along with his words, “Let me rent you a house, I have a house, let’s live together,” and the defendant should be punished with the penalty for the simple sexual assault crime pursuant to Article 102/1 of the Turkish Penal Code. (Court of Cassation, 4th Criminal Chamber – Decision: 2015/25817).—
What is the Crime of Aggravated Sexual Assault?
Aggravated sexual assault is a crime that occurs when there are aggravating circumstances involved in the sexual assault committed against the victim. These circumstances include factors such as the victim’s familial relationship, health condition, age, sexual identity, and the nature of the act committed. Aggravated sexual assault requires a harsher penalty compared to sexual assault committed by means of molestation.
In terms of aggravated forms of sexual assault, the crime occurs through the insertion of an organ or other object into the victim’s body. Aggravated sexual assault includes the violation or rape of the victim. The inserted organ or object can be oral, anal, or vaginal. For this crime to be established, it is sufficient that the perpetrator acts to satisfy sexual desires and engages in sexual and lustful behavior. Regarding the aggravating factors of the crime of aggravated sexual assault;
1- Against a person who is defenseless in terms of body and mind,
2- By abusing the influence provided by public office, guardianship, or service relationship,
3- Against a person who is related by blood or marriage up to the third degree,
4- By a stepmother, stepfather, or stepchild,
5- With a weapon or together with more than one person,
6- Committed by taking advantage of the facilities provided by environments where people are obliged to live together, such as hotels, boarding houses, or dormitories,
the penalty imposed shall be increased by half.
The investigation and prosecution of the aggravated sexual assault crime are not dependent on a complaint and are carried out ex officio. However, if the perpetrator and the victim of the sexual assault crime are husband and wife, the investigation and prosecution can only proceed if the victim spouse files a complaint. Without the complaint of the victim spouse, it is not possible to conduct an investigation or prosecution.
Statute of Limitations and Mediation in Sexual Assault Crimes
The statute of limitations is significant in sexual assault crimes. If the prosecution process has not been initiated or completed within the statute of limitations period, there is a risk that the case will be dismissed due to the expiration of the limitation period. The statute of limitations varies depending on the nature of the sexual assault offense itself. The statute of limitations for sexual assault offenses at the level of molestation is 8 years. However, for simple sexual assault and aggravated sexual assault offenses, the statute of limitations is set at 15 years.
Additionally, sexual assault crimes are not included among the offenses subject to mediation by the legislator. The nature of the offense itself does not affect its eligibility for mediation. In other words, regardless of whether the offense was committed as simple, aggravated, or molestation, the crime is not subject to mediation.
The Requirement of a Complaint in Sexual Assault Crimes
Whether the sexual assault crime is subject to a complaint depends on the severity of the offense itself. The investigation and prosecution of simple sexual assault crimes are complaint-based. If the victim does not file a complaint regarding sexual assault committed through groping, no investigation or prosecution can be conducted for these crimes. The complaint period is 6 months from the time the act and the perpetrator are known. Additionally, the investigation and prosecution carried out based on a complaint end if the victim withdraws the complaint. However, in cases of Aggravated Sexual Assault, the investigation and prosecution are not complaint-based and are conducted ex officio.
The legislator has made an exception regarding the ex officio investigation and prosecution of Aggravated Sexual Assault. If the perpetrator and the victim of the sexual assault are husband and wife, then for the investigation and prosecution to proceed, the victim spouse must file a complaint. Without the victim spouse’s complaint, investigation and prosecution are not possible.
Can the Sentence for Sexual Assault Be Suspended? Can It Be Converted to a Fine?
A judicial fine can be converted from imprisonment sentences of one year or less for intentionally committed crimes, and for negligence-based crimes, all penalties regardless of severity can be converted to judicial fines. However, in the case of sexual assault offenses, conversion to a judicial fine is not possible.
Suspension of sentence, according to Article 51 of the Turkish Penal Code, is the postponement of the execution of a prison sentence imposed by the court for a committed crime for a certain period. For the suspension to apply, the person must have been sentenced to imprisonment for two years or less for the committed offense. Suspension of sentence is not possible for sexual assault crimes other than those committed through molestation.
Regarding postponement of the announcement of the verdict (Hükmün Açıklanmasının Geriye Bırakılması – HAGB), if the sentence given to the defendant is imprisonment of two years or less or a judicial fine, and if the conditions stipulated in the law are met, the verdict can be postponed for five years. According to Article 231 of the Criminal Procedure Code, postponement of the announcement of the verdict is not applicable for sexual assault crimes other than those committed through molestation.
Simple Sexual Assault Crime Against a Spouse
In sexual crimes committed against a spouse, only the qualified form of sexual assault—defined as the crime of rape—is regulated as a complaint-based offense in the second sentence of Article 102/2 of the Turkish Penal Code (TCK), while the simple form of sexual assault committed against a spouse is not regulated as a crime. In this context, without considering that the defendant’s act of pulling his legally married wife towards him against her will, hugging and kissing her, does not constitute the simple sexual assault crime defined in Article 102/1 of the TCK, convicting the defendant is contrary to law. (Court of Cassation, 14th Criminal Chamber – Decision: 2014/1689).
Allegation of False Accusation in Simple Sexual Assault Crime
The victim’s consistent and unchanged statements during the proceedings, the testimony of witness V. stating that the victim told him on the day of the incident that the defendant sexually assaulted her and that he took a written statement regarding this matter, the absence of any hostility between the parties that would require the victim to falsely accuse the defendant in a manner that would damage her own honor, and from the entirety of the case file, it is understood that the defendant committed the crime of simple sexual assault by squeezing the victim’s hip with his hand. Accordingly, the defendant must be convicted of simple sexual assault pursuant to Article 102/1 of the Turkish Penal Code. (Supreme Court 14th Criminal Chamber – Decision: 2014/7077).
The Distinction Between the Crime of Sexual Harassment and the Crime of Sexual Assault
The defendant, who is the store manager, during a time when he was alone with the victim working as a sales assistant at the same workplace on the day of the incident, reportedly grabbed the victim’s hand against her will, pushed her against the wall, then kissed her on the lips and neck, and fondled her breasts and buttocks. Considering these actions, which constitute the simple sexual assault crime under Article 102/1-3-b of the Turkish Penal Code, failing to recognize this and instead convicting the defendant of sexual harassment due to a misclassification of the crime is against the law. (Supreme Court of Appeals 14th Criminal Chamber – Decision: 2014/2161)
Attempted Aggravated Sexual Assault Crime
The contradictory statements of the victim and the complainant, the victim’s claims that the defendant forcibly put her into a taxi on the street and took her to his house where he forced her to drink alcohol and consume cannabis, the assault report which does not support these claims, the Forensic Medicine Institute’s Expert Board report indicating that no drugs or stimulants were found in the victim’s blood and urine samples taken two days after the incident, the fact that when police went to the address reported by the complainant the victim was found alone at home, the victim’s initial statement that the defendant did not commit any act against her, and her account that she knew the defendant beforehand and went to his house willingly, and considering the entirety of the file, since there is no certain, convincing, and conclusive evidence free of all doubts that the defendant forcibly took the victim to his home and attempted to commit aggravated sexual assault (attempted rape) without her consent, the decision to convict the defendant instead of acquitting him of the charged offenses is against the law (Supreme Court 14th Criminal Chamber – Decision: 2014/7979).
Attempted Simple Sexual Assault
Although the defendant A. violated the bodily integrity of the complainant by pressing her shoulders and forcing her to sit down on a chair while she was standing up to see him off as he was leaving the house where he was a guest, it is understood from the case file that this act was not aimed at satisfying sexual desires, and therefore does not constitute the crime of simple sexual assault. However, when the defendant later leaned over the complainant to try to kiss her, he did not complete the act because the complainant resisted by shouting before any bodily violation occurred. Since this incomplete act was carried out with the aim of satisfying sexual desires, convicting the defendant of attempted simple sexual assault instead of convicting him of the completed form of the mentioned crime, as written, is contrary to law. (Supreme Court 14th Criminal Chamber – Decision: 2015/11015)
Complaint and Consent-Based Sexual Intercourse in the Crime of Rape
It is understood from the full content of the case file that on 08.09.2015, after the victim, a 23-year-old woman, positively responded to the defendant’s request to meet via the Instagram mobile messaging application, they met later that night around 22:00 in the city center of Muğla, where the victim was living with her roommate, witness B. They went to a bar together and consumed alcohol. Around 01:30, after the victim expressed that she did not want to go home, she agreed to go with the defendant and his friends, witnesses F. and E., to a residence where the defendant occasionally stayed. There, the defendant and the victim engaged in vaginal and anal intercourse. At that time, the victim did not file a complaint against the defendant.
However, on 11.09.2015, following an online publication alleging that the defendant had raped the victim by force and prevented her from filing a complaint through coercion, the defendant sent a message to the victim stating that he would hold her responsible and file a complaint. Subsequently, on 13.09.2015, around 03:00 a.m., the victim went to the police and filed a complaint alleging that the defendant had raped her by force.
Given all the evidence in the case file, there is no concrete, clear, or convincing evidence beyond a reasonable doubt that the defendant had non-consensual sexual intercourse with the victim, aside from the abstract accusation. Therefore, it was unlawful to convict the defendant in writing instead of acquitting him of the charged offense (Court of Cassation 14th Criminal Chamber – Decision: 2016/6322).
