Crime of sexual harassment

Sexual harassment refers to disturbing words, behavior, or actions directed against a person's sexuality without their consent. To distinguish the crime of sexual harassment from the crime of sexual assault, the contact criterion is taken into consideration. In order to be considered a crime of sexual harassment, sexually disturbing behavior must occur without contact. If the perpetrator touches the victim, he/she commits the crime of sexual assault.

The crime of sexual harassment is regulated in Article 105 of the Turkish Penal Code. According to the article, a crime is committed by harassing a person for sexual purposes. In the justification of the relevant article, the act of sexual harassment "can be carried out with sexual behavior that does not constitute a violation of the person's bodily immunity. Sexual harassment consists of disturbing the victim in a sexual way, contrary to moral cleanliness." It is defined as .

The legal value protected by the crime of sexual harassment, which is regulated under the title of crimes against sexual immunity and among the crimes committed against individuals in the TCK, is the sexual immunity and integrity of the person. The legislator has imposed actual sanctions on every non-consensual and disturbing act regarding sexuality, with the idea of punishing it.

PERPERT AND VICTIM IN THE CRIME OF SEXUAL HARASSMENT

Anyone can be the perpetrator or victim of sexual harassment. There is no distinction in terms of gender. It is possible for the crime to be committed between people of the same gender. Sexual harassment is a type of crime that can also be committed against children. However, the punishment is aggravated for sexual harassment crimes committed against children.

It is also possible to commit the crime of sexual harassment against the spouse.

INTENTION IN THE CRIME OF SEXUAL HARASSMENT

Intent constitutes the moral element of the crime. However, the term sexual harassment is used in the text of the article. What is understood from the text is that the disturbing behavior must be for sexual purposes. In this case, it is concluded that the legislator is looking for special intent. In each concrete case, the judge investigates whether this special intention exists.

HOW IS THE CRIME OF SEXUAL HARASSMENT COMMITTED?

Sexual harassment constitutes the material element of the crime of sexual harassment. In order to be able to talk about the existence of the crime of sexual harassment, the perpetrator must engage in some behavior for the purpose of sexual gratification. As we mentioned above, these behaviors should not reach the level of contact. In other words, any sexual behavior that disturbs the victim, without reaching the level of contact, is considered sexual harassment. For the crime of sexual harassment to occur, it is sufficient for the harassment to disturb the victim.

Another criterion for a crime to occur is that sexual harassment must be directed at a specific person. If the person or persons to whom the behavior is directed is not specific, the crime will not occur. In practice, it is often seen that the crime of sexual harassment is committed in the following ways;

-By phone,

-With sounds or movements that the victim can see and hear (kissing, making hand gestures, etc.)

-By commenting or sending messages on social media networks,

-By sending a letter,

To give an example of some situations encountered in practice and resulting in conviction;

It has been concluded that the crime was committed by actions such as frequent phone calls, kissing, persistent offers of friendship, making sexual gestures, making jokes, sending messages over the internet, showing one's genitals, and offering sexual intercourse.

As a matter of fact, in a decision of the Supreme Court;

"Harassment is defined in the Turkish Dictionary of the Turkish Language Association as "annoying, disturbing or causing trouble."

In the justification of the article; Although there is no clarity in the law as to what kind of behavior sexual harassment, which is expressed as "sexual harassment of the victim against moral purity", can be committed, doctrinal and judicial decisions define this crime as; "It is accepted that this can only be done by actions that target the victim without violating his/her bodily immunity, such as saying words towards his/her sexuality, sending a message or letter, making hand gestures, blowing a kiss, offering sexual intercourse, or showing his/her genitals." He stated as follows.

Again, in the same decision, "The material element of the crime of sexual harassment is to harass a person for sexual purposes. The moral element of the crime is intent, and the perpetrator must have a sexual purpose, in other words, he must act with the aim of satisfying his sexual desires and desires. Whether the action is committed for sexual purposes or which act will constitute the crime of sexual harassment will be determined by the judge according to the characteristics of the concrete case. As a matter of fact, in judicial decisions; climbing the window and saying "I will kidnap you, let me in, I will come in" is Smelling flowers against the victim, calling the victim at short intervals, saying things like "I'm in front of your house, go out, I'll satisfy you financially and spiritually," "I love you, I want to marry you," "I know you and your family, get in the car, I'll drive you to your destination, I won't do anything bad to you," and sending messages such as "Do you want to talk, have the number ring, if you don't want it, no one will know" is considered sexual harassment. expressions are included.

PROOF OF SEXUAL HARASSMENT

The crime of sexual harassment is one of the most difficult crimes to prove, due to the way it is committed. Criminal acts usually occur between two people. In this respect, it is very difficult to prove it with witnesses. In addition, camera footage etc. is provided in each incident. There are no visual aids either.

All these difficulties have resulted in the development of some criteria to ensure that crime does not go unpunished. First of all, the Supreme Court has adopted the view that in some cases a person cannot slander his own chastity. Thus, the victim's statements that he was harassed were accepted as evidence. But this view is very open to abuse. For this reason, some research is carried out on the person who claims to have been harassed and the person who is said to have harassed.

First of all, it is investigated whether the person who claims to have been harassed has slandered himself or not. This investigation consists of investigating the existence of a situation that may cause slander. If the person has no reason to slander himself, his statements are taken into account. According to the Supreme Court, it is accepted that women living in small settlements will not slander themselves like this. Because the characteristics of the place where the person lives are considered suitable for the person to experience difficulties due to this situation. Apart from this, victim statements from people living in larger cities were not considered as evidence on their own.

The victim's statements should not be inconsistent. As a matter of fact, in the established jurisprudence on the subject, the contradiction between the statements was evaluated as doubt and the defendant was acquitted.

Another situation that needs to be investigated is whether there is any hostility between the defendant and the victim. If the defendant and the victim have known each other before and it is known that there is animosity between them, in such cases, victim statements alone cannot be considered sufficient to prove the crime.

The fact that the victim does not know the defendant before will cause the victim's statements to be taken into account.

In a decision dated 2015, the Criminal General Assembly of the Supreme Court of Appeals said, "Considering the sincere, insistent and unhesitating statement of the participant, who does not have a valid reason to slander the defendant on an issue that concerns his own honor and dignity, the defendant sexually harassed the participant by using sentences such as "I want to be with you, come to me with your consent, if you want, I will kidnap you, if not with your consent, I will tell your wife, your marriage will collapse", which are compatible with each other in stages. It must be accepted that it is proven that he committed the crime." He stated that a decision should be made according to the criteria mentioned above.

PUNISHMENT FOR SEXUAL HARASSMENT

TCK 105/1. According to the article, the penalty for sexual harassment is determined as imprisonment from 3 months to 2 years or a judicial fine. If the victim is a child, the perpetrator is punished with imprisonment from 6 months to 3 years.

TCK has regulated that in some cases, the punishment to be given to the defendant for the crime of sexual harassment should be increased. In the cases listed below, it is envisaged that the penalty will be increased as it will become easier to commit the crime. The law provides for situations that make it easier for the crime to be committed and where the punishment will be increased;

1- By benefiting from the convenience provided by public duty or service relationship or family relationship,

2- By guardians, trainers, caregivers, foster families or health care providers or persons who have protection, care or supervision obligations,

3- By benefiting from the convenience of working in the same workplace,

4- By benefiting from the convenience provided by mail or electronic communication tools,

5- By exposure,

Counted as.

In case the above conditions are met, the penalty to be given to the perpetrator is increased by half.

Also, the victim due to the act of sexual harassment; If the offender is forced to quit his job, leave school or his family, the penalty to be given to the perpetrator cannot be less than 1 year.

SEXUAL HARASSMENT CRIME COMPLAINT

The investigation and prosecution of simple sexual harassment committed against adults is subject to complaint. The complaint period is six months.

If the crime of sexual harassment is committed against a child, no complaint is required.

Qualified cases of sexual harassment are also prosecuted ex officio. No complaints required.

SEXUAL HARASSMENT CHAINING CRIME

It is possible to commit the crime of sexual harassment in a chain manner. If the crime is committed against the same person or more than one person with the same action at different times, the penalty to be given to the perpetrator is increased.

As a matter of fact, the Supreme Court of Appeals stated in one of its decisions, "The dispute is about determining whether the crime of sexual harassment charged against the defendant is proven or not and whether the elements of the crime are present. The defendant, who was the president of the High Criminal Court at the time of the crime, said to the victim, who served as the editor-in-chief of the same court, at different times, "Manager, you are tired, sit down and sleep, I will watch you, no one can disturb you here", "Your earrings are very beautiful", "This necklace suits you very well", "The one you wore yesterday." "In the face of understanding that he said sexually disturbing words targeting the victim such as 'You did not wear the earring today', 'My manager, you look tired, sit down and rest', 'I want my manager to make me coffee', 'Is coffee only served here', it is necessary to accept that the defendant committed the crime of sexual harassment in a chain manner by abusing the influence arising from the hierarchy as of the date of the crime and taking advantage of the convenience provided by working in the same workplace." He ruled as follows.

THE COURT IN CHARGE OF SEXUAL HARASSMENT

The trial of the crime of sexual harassment is carried out by the Criminal Courts of First Instance.

The statute of limitations for the case is 8 years.

If the penalty for the crime of sexual harassment is determined to be 2 years or less, delay of announcement of the verdict (HAGB) provisions may be applied to the defendant.

IS THE CRIME OF SEXUAL HARASSMENT A DISGRACEFUL CRIME?

The concept of a disgraceful crime is regulated in the Constitution and some special laws. There is no such distinction in the Turkish Penal Code. Disgraceful crime has consequences in recruitment to some professions and positions. For this reason, those convicted of crimes listed in some laws cannot be appointed to certain positions.

The crime of sexual harassment is not defined as a disgraceful crime in any special law. For this reason, it will not be possible for the perpetrator of sexual harassment to be denied employment in any profession due to the crime he committed. If this happens, a lawsuit should be taken.