Crime and punishment of sexual relationship with a minors

Provisions regarding the crime and punishment of sexual intercourse with a minor are regulated under the title of "Crimes Against Sexual Immunity" within the "Crimes Against Persons" in Article 104 of the Turkish Penal Code. According to the article, the crime is committed by having sexual intercourse with victims who are over the age of 15 but not over the age of 18, without force, threat or fraud. For a crime to occur, the relationship must be consensual. If the victim does not consent, the crime of sexual abuse will come to the fore. The consent of people of a certain age group regarding sexual intercourse is not considered valid. Even if it is based on consent, sexual intercourse with a child over the age of fifteen is considered a crime. Therefore, it is not possible to consider consent as a reason for compliance with the law in this crime. By punishing this act, the legislator aimed to protect the sexual integrity of children between the ages of 15-18, even if they have the power to appeal.

Perpetrator in the crime of sexual intercourse with a minor

No specific characteristics were sought for the perpetrator of the crime of sexual intercourse with a minor. Anyone can be the perpetrator of this crime. There is no distinction in terms of gender. Therefore, the perpetrator can be male or female. Male-to-male sexual relations are also considered within the scope of this crime. If one party of the relationship is over 18 years old, the perpetrator is the party over 18 years old. There is no hesitation on this matter.

However, a point that should be taken into consideration for the perpetrator is that in the crime of sexual intercourse with a minor, both parties are under the age of 18. There is no clarity in the law regarding this issue. In practice, if both parties involved in sexual intercourse are between the ages of 15-18, the active party of the relationship is considered the perpetrator. In other words, in male-female relationships, the perpetrator is the male, and in male-male relationships, the perpetrator is the active male. Female-female relations are not considered as sexual intercourse within the scope of the crime of sexual intercourse with a minor. Therefore, female-to-female relationships are not within the scope of crime. As a matter of fact, the Supreme Court has a decision stating that in sexual intercourse through sodomy (sexual intercourse between men), the perpetrator is the active party of the sexual intercourse.

VICTIM OF SEXUAL RELATIONSHIP WITH A MINOR

As we mentioned above, the victim of the crime is a child who is over 15 years old but not 18 years old. The victim child can be a boy or a girl. At this point, determining the age of the victim is of serious importance. If there is any doubt about the age of the victim, the real age should be determined by detailed examination.

As a matter of fact, in a decision of the 14th Criminal Chamber of the Supreme Court of Appeals dated 2016, regarding a dispute in which the age of the victim was objected to, "The age of the victim was objected to by the defendant's counsel. Providing the birth report, in case the report cannot be provided, bone radiographs are taken as a basis for age determination and a report is obtained from a full-fledged hospital from a medical board including a radiologist. In case of hesitation, after the opinion of the Forensic Medicine Institute is determined and the real age is determined scientifically." "The nature of the crime and the legal status of the defendant must be determined and appreciated." He ruled as follows.

If people under the age of 18 are married, sexual relations with their spouses are not considered a crime.

OCCURRENCE OF THE CRIME OF SEXUAL RELATIONSHIP WITH A MINOR

For a crime to occur, there must be a sexual relationship that takes place without force, threat or deceit. If these elements are found, the crime of sexual abuse will now come to the fore.

Sexual intercourse must have occurred. In the crime of sexual intercourse with a minor, sexual intercourse is defined as the vaginal or anal importation of the male genital organ into a woman or anally into a man. The Supreme Court does not accept lovemaking acts that do not reach the level of intercourse as sexual intercourse. It does not matter whether the intercourse is anal or vaginal. However, the Supreme Court ruled that the crime of sexual intercourse with a minor does not occur in oral relations. In addition, inserting an organ other than the sexual organ into the victim vaginally or anally is not considered a crime. In addition, if the perpetrator is a woman, the victim must have her genitals inserted into her own genitals.

For the crime to occur, the victim must be over 15 years old but not have any mental retardation. If the victim has mental retardation and this is known to the perpetrator, the crime of sexual abuse will occur. However, if the perpetrator does not know about his mental retardation, this time he will be punished for sexual intercourse with a minor. Whether there is mental retardation and whether it can be understood by others is determined by a report from the Forensic Medicine Institute. As a matter of fact, in 2015, the 14th Criminal Chamber of the Supreme Court of Appeals stated that "mild to moderate mental retardation was detected in the victim and it was stated that this mental retardation may not be understood by non-physicians, in the face of the defendant's defense that the other defendants told him that the victim was shy, there was a doubt that the defendant living in rural areas knew about the mental retardation of the victim, with whom he had limited contact before the incident, and without considering that the defendant made a mistake on the point that the victim's consent was valid, in written form." It is not right for him to be convicted." He ruled as follows.

If the victim used drugs or drank alcohol voluntarily, it cannot be concluded that he did not consent. A victim who has sex with someone else by drinking alcohol is considered to have committed a crime of sexual intercourse with a minor. The act cannot be considered as sexual abuse. As a matter of fact, the 17th Criminal Chamber of the Supreme Court of Appeals stated that "The victim, who was seventeen years old at the time of the crime, met with the defendant and the child who was dragged into the crime on the day of the crime, went to the defendant's friend's house after buying alcoholic beverages from the market, and after drinking alcohol, first the defendant and then the child who was dragged into the crime, then went out to the disco with the child who was dragged into the crime, went out to the disco with the child who was dragged into the crime, drank beer there, and was caught by the police while they were on the road together. The defendant and the child who was dragged into the crime used force and threats in their actions towards the victim." "In the face of the understanding that the victim did not even make a statement that they used alcohol or that they used alcohol with their consent, convictions should be established for these crimes, considering that the actions of the defendant and the child who was dragged into the crime constitute the crimes of sexual intercourse with a minor as defined in Article 104/1 of the Turkish Penal Code and the crimes of abduction and detention of the child in Article 234/3 of the Turkish Penal Code." There is a decision as follows.

In case of sexual intercourse with the promise of marriage, the crime will also be evaluated within the scope of the crime of sexual intercourse with a minor. Here, the victim's consent is affected, so a penalty cannot be imposed for the crime of sexual abuse.

The crime of sexual intercourse with a minor can only be committed intentionally.The perpetrator must know that the person with whom he has sexual intercourse is under 18 years of age. If the person has intercourse with someone he does not know is underage, the provisions of error will be applied. If the victim appears to be older and the perpetrator is not in a position to know the real age of the victim, the perpetrator will not be punished.

QUALIFIED ELEMENTS OF THE CRIME OF SEXUAL RELATIONSHIP WITH A MINOR

There are two qualified forms of crime regulated by law. The first qualified situation is when the perpetrator is a person who is prohibited from marrying the victim. Persons who are prohibited from marrying in Turkish law are regulated in Article 129 of the Civil Code, which regulates kinship. Accordingly;

"Marriage is prohibited between the following people:

1. Between superior and descendants; between siblings; between uncles, aunts, aunts and their nephews,

2. Even if the marriage that created in-law kinship has ended, between one of the spouses and the ascendants or descendants of the other,

3. Between the adopter and the adopted child, or between one of them and the descendants and spouses of the other.”

The second qualified situation is when the crime is committed by the person who undertakes the pre-adoption care of the child to be adopted or who has the obligation to protect, care and supervise within the framework of the foster family relationship. This provision attempts to prevent actions that would facilitate abuse.

PENALTY FOR HAVING SEXUAL RELATIONSHIP WITH A CHILD UNDER 18 YEARS OF AGE

1- Any person who has sexual intercourse with a child over the age of fifteen, without force, threat or fraud, is punished with imprisonment from two to five years.

2- If the crime is committed by a person who has a marriage ban between him and the victim, he is sentenced to imprisonment from ten to fifteen years.

3- If the crime is committed by the person who undertakes the pre-adoption care of the child to be adopted or who has the obligation to protect, care and supervise within the framework of the foster family relationship, a prison sentence of ten to fifteen years is imposed.

SEXUAL RELATIONSHIP WITH A MINOR CRIME CHAINING CRIME

If the perpetrator has sexual intercourse with the victim more than once, the punishment to be imposed is increased by applying the chain crime provisions. "Since it is understood from the content of the entire file that the defendant had sexual intercourse more than once with the victim, with whom he started living together, on different dates within the scope of execution of a decision to commit a crime, based on her legally valid consent due to her age, it is inappropriate to determine an incomplete sentence without considering that it should be increased by Article 43/1 of the same Law on the chain crime, even though the conditions for the basic penalty determined by Article 104/1 of the Turkish Penal Code No. 5237 are met." Y14CD. K. 2017/3308

However, according to the decision numbered 2014/12359 of the 14th Criminal Chamber of the Supreme Court of Appeals, "According to the occurrence and acceptance; the victim and the defendant, who had emotional closeness between them, had consensual sexual intercourse twice in March 2009 and January 2010, and considering the time between both actions and the way the actions occurred, it should be accepted that the defendant's criminal intent was renewed and the actions constitute separate crimes."

COMLAINT AND TRIAL FOR THE CRIME OF SEXUAL RELATIONSHIP WITH A MINOR

104. In crimes committed according to paragraph 1 of the article, the punishment of the perpetrator depends on the complaint of the victim. The complaint period is 6 months. If the victim does not file a complaint within this period, the perpetrator will not be punished. The complaint period starts from the date the perpetrator and the act are learned. The right to complain is granted to the victim and is made by the victim. However, if the victim does not have the power to appeal, the complaint is made through a legal representative. If the victim gives up the complaint, the case is decided to be dropped.

In cases of qualified crime, no complaint is required. Investigation and prosecution are carried out ex officio.

The trial of the simple crime of having sexual intercourse with a minor is carried out by the Criminal Courts of First Instance.

If the crime is committed in a qualified manner, the competent court will be the High Criminal Court.

The crime is not one of the crimes within the scope of reconciliation.