Sexual Abuse of Children - Çekmeköy Criminal Lawyer
The offence of sexual abuse of children is regulated under Article 103 of the Turkish Penal Code and is intended to protect the sexual inviolability of children. The law makes different assessments according to the age of the child victim and the child's ability to comprehend the legal meaning and consequences of the act; it prescribes different sanctions for the basic form of the offence, the form remaining at the level of molestation, the form committed by inserting an organ or another object into the body and aggravated circumstances increasing the penalty.
In the offence of sexual abuse of children, the victim's age, the nature of the act, the relationship between the perpetrator and the victim, whether force, threat or deception exists and the manner in which the offence is committed are important in determining the legal classification and penalty. Therefore, in assessments concerning the offence of sexual abuse of children, penalty for sexual abuse of a child, Article 103 of the Turkish Penal Code, Çekmeköy criminal lawyer, Çekmeköy high criminal court lawyer and Istanbul criminal lawyer, all circumstances of the specific case should be examined together.
What Is the Offence of Sexual Abuse of Children?
The offence of sexual abuse of children is an offence punishing sexual conduct directed against children specified within the scope of Article 103 of the Turkish Penal Code.
Under the law, the concept of sexual abuse covers conduct concerning two principal groups. Any sexual conduct against children who have not completed the age of fifteen or who have completed the age of fifteen but whose ability to comprehend the legal meaning and consequences of the act has not developed is assessed within this scope.
With respect to other children, the sexual conduct must be based on force, threat, deception or another reason affecting the will.
Under Which Article of Law Is the Offence of Sexual Abuse of Children Regulated?
The offence of sexual abuse of children is regulated under Article 103 of Turkish Penal Code No. 5237.
In addition to the basic form of the offence, Article 103 regulates acts remaining at the level of molestation, sexual abuse committed by inserting an organ or another object into the body, circumstances increasing the penalty and more serious consequences such as the victim entering a vegetative state or dying as a result of the offence.
What Does the Concept of Sexual Abuse Mean?
For the purposes of Article 103 of the Turkish Penal Code, the scope of sexual abuse is determined according to the victim's age and ability to comprehend the act.
Any sexual conduct directed against a child who has not completed the age of fifteen is assessed as sexual abuse. Likewise, sexual conduct against children who have completed the age of fifteen but whose ability to comprehend the legal meaning and consequences of the act has not developed also falls within this scope.
For other children, the sexual conduct must be based on force, threat, deception or another reason affecting the will.
Why Is Age Important in the Offence of Sexual Abuse of Children?
The victim's age is one of the fundamental factors in the legal classification of the offence of sexual abuse of children and determination of the applicable penalty.
The source document examines victims according to age and capacity to comprehend the act by distinguishing children under twelve; children who have completed the age of twelve but not fifteen; children who have completed the age of fifteen but whose ability to comprehend the legal meaning and consequences of the act has not developed; and other children.
In particular, where the victim has not completed the age of twelve, higher statutory minimum penalties apply.
Sexual Abuse of a Child Under the Age of 15
Under Article 103 of the Turkish Penal Code, any sexual conduct directed against a child who has not completed the age of fifteen is assessed within the scope of sexual abuse.
For children in this group, the existence of force, threat or deception is not additionally required for the conduct to be classified as sexual abuse. The source document further states that the consent of a child who has not completed the age of fifteen is not accepted as legally valid consent within the meaning of Article 26 of the Turkish Penal Code.
Sexual Abuse Concerning Children Who Have Completed the Age of 15
According to the source document, for Article 103 of the Turkish Penal Code to apply to children who have completed the age of fifteen and whose ability to comprehend the legal meaning and consequences of the act has developed, the sexual conduct must be based on force, threat, deception or another reason affecting the will.
Where these conditions do not exist, the offence of sexual intercourse with a minor regulated under Article 104 of the Turkish Penal Code may need to be considered depending on the circumstances of the case.
Accordingly, the mere fact that the victim is under the age of 18 does not automatically result in every sexual act being assessed under the same offence.
Sexual Abuse of a Child Under the Age of 12
The victim not having completed the age of twelve is an important circumstance affecting the statutory minimum penalty.
Under Article 103/1 of the Turkish Penal Code, where the victim has not completed the age of twelve, the penalty may not be less than ten years for sexual abuse and may not be less than five years where the conduct remains at the level of molestation.
Where the sexual abuse is committed by inserting an organ or another object into the body and the victim has not completed the age of twelve, the penalty may not be less than eighteen years.
What Is the Basic Penalty for the Offence of Sexual Abuse of Children?
Under Article 103/1 of the Turkish Penal Code, a person who sexually abuses a child is sentenced to imprisonment for a term of eight to fifteen years.
Where the sexual abuse remains at the level of molestation, imprisonment for a term of three to eight years is prescribed.
Where the victim has not completed the age of twelve, the penalty may not be less than ten years for the basic form of sexual abuse and may not be less than five years for conduct remaining at the level of molestation.
What Is Sexual Abuse of a Child at the Level of Molestation?
Molestation is a form of the sexual abuse offence for which a lower penalty is prescribed.
In the Court of Cassation decision cited in the source document, an act consisting of touching the victim's buttocks, which was not continuous and was sudden and interrupted in terms of movement, was assessed as simple sexual abuse of a child remaining at the level of molestation.
Therefore, the nature, duration and continuity of the act and the other circumstances of the specific incident are important in assessing molestation.
Where the Perpetrator of Molestation Is a Child
Article 103/1 of the Turkish Penal Code contains a special complaint rule where the perpetrator of an offence remaining at the level of molestation is a child.
Accordingly, where the perpetrator of conduct remaining at the level of molestation is a child, investigation and prosecution depend on a complaint by the victim, the victim's parent or guardian.
This special circumstance differs from the general prosecution regime for the offence of sexual abuse of children.
Sexual Abuse by Inserting an Organ or Another Object Into the Body
Sexual abuse committed by inserting an organ or another object into the victim's body constitutes a form of the offence requiring a more severe penalty.
Under Article 103/2 of the Turkish Penal Code, imprisonment for a term of not less than sixteen years is imposed in this situation.
Where the victim has not completed the age of twelve, the penalty may not be less than eighteen years.
What Circumstances Increase the Penalty for Sexual Abuse of Children?
Article 103/3 of the Turkish Penal Code provides for the penalty to be increased by one half in relation to certain methods of commission and relationships between the perpetrator and the victim.
These include commission of the offence jointly by more than one person, taking advantage of environments where people are required to live collectively, commission within kinship relationships specified by law, commission by a guardian, educator, teacher, caregiver, foster family member or healthcare provider or a person under an obligation to protect, care for or supervise the child, and abuse of influence arising from public duty or a service relationship.
Commission of the Offence Jointly by More Than One Person
Commission of the offence of sexual abuse of children jointly by more than one person is one of the circumstances increasing the penalty.
In such a case, the penalty determined under the relevant paragraphs is increased by one half pursuant to Article 103/3 of the Turkish Penal Code.
The manner in which the individuals participated in the offence and whether they acted jointly are separately assessed in the specific case.
Taking Advantage of Collective Living Environments
Commission of the offence by taking advantage of an environment in which people are required to live collectively is one of the circumstances increasing the penalty.
In the Court of Cassation decision cited in the source document, places such as children's homes, penal institutions, student dormitories, school boarding facilities and hospitals are given as examples of such environments, while a municipal bus was held not to fall within this category.
Accordingly, the mere fact that the offence was committed in a crowded place is not by itself sufficient for this aggravating circumstance to apply.
Does a Kinship Relationship Increase the Penalty?
Yes.
Where the offence is committed against a person related by blood or affinity up to and including the third degree, or by a stepfather, stepmother, stepsibling or adopter, the penalty is increased by one half.
The family or kinship relationship between the perpetrator and the victim may therefore directly affect determination of the penalty.
Sexual Abuse by a Teacher, Caregiver or Guardian
Under Article 103/3 of the Turkish Penal Code, commission of the offence by a guardian, educator, teacher, caregiver, foster family member, healthcare provider or a person under an obligation to protect, care for or supervise the child is one of the circumstances increasing the penalty.
In such a case, the penalty imposed under the relevant paragraphs is increased by one half.
The law thereby subjects persons who abuse their special position concerning the protection, education, care or supervision of the child to a more severe sanction.
Abuse of Influence Arising From Public Duty or a Service Relationship
Commission of the offence by abusing influence arising from public duty or a service relationship also results in the penalty being increased by one half.
For this aggravating circumstance, the relationship between the perpetrator's position and the commission of the offence must be assessed in the specific case.
Sexual Abuse of a Child by Force or Threat
Article 103/4 of the Turkish Penal Code separately regulates the use of force or threat as a circumstance increasing the penalty for specified groups of victims.
Where sexual abuse against children falling within subparagraph (a) of the first paragraph is committed by force or threat, the penalty determined under the relevant paragraphs is increased by one half.
Sexual Abuse of a Child with a Weapon
Under Article 103/4 of the Turkish Penal Code, where sexual abuse against children falling within subparagraph (b) of the first paragraph is committed with a weapon, the penalty is also increased by one half.
The manner in which the weapon was used and the circumstances of the incident should be separately assessed in the specific case.
What Happens If Injury Occurs During Sexual Abuse?
Where force and violence used for sexual abuse cause aggravated consequences of intentional injury, the provisions concerning intentional injury are additionally applied.
Accordingly, under specified conditions, the perpetrator may be held liable not only for sexual abuse but also under the provisions concerning intentional injury due to the aggravated injury that occurred.
Death or Vegetative State of the Victim as a Result of Sexual Abuse
Under Article 103/6 of the Turkish Penal Code, where the victim enters a vegetative state or dies as a result of the offence, aggravated life imprisonment is imposed.
The source document also addresses this situation among the forms of sexual abuse of children aggravated by their consequences.
Is the Consent of a Child Under the Age of 15 Legally Valid?
The source document states that the consent of a child who has not completed the age of fifteen is not accepted as legally valid consent within the meaning of Article 26 of the Turkish Penal Code.
Therefore, an allegation that a child in this age group consented to the conduct does not by itself render the act lawful.
How Is Consent Assessed for Children Between the Ages of 15 and 18?
According to the source document, for sexual abuse under Article 103 of the Turkish Penal Code to occur in relation to children who have completed the age of fifteen and whose ability to comprehend the legal meaning and consequences of the act has developed, force, threat, deception or another reason affecting the will is required.
Where these circumstances are absent, application of Article 104 of the Turkish Penal Code may arise depending on the nature of the particular act.
Accordingly, legal assessment for the 15-18 age group should be made by considering the victim's age, ability to comprehend the act and the circumstances in which the act occurred.
Can a Child Commit the Offence of Sexual Abuse Against Another Child?
The source document states that the offence of sexual abuse may also be committed by a child who is alleged to have committed an offence.
Where the perpetrator is a child, special provisions of juvenile criminal law become relevant. In addition, where the offence remains at the level of molestation and the perpetrator is a child, Article 103/1 of the Turkish Penal Code contains a special complaint requirement.
How Are Sexual Acts Between Peers Assessed?
The source document states that the fact that the accused and the victim are of the same or similar ages does not by itself have statutory significance for the final penalty.
Therefore, being “peers” does not by itself prevent application of Article 103 of the Turkish Penal Code. The victim's age, the perpetrator's age, the nature of the act and the other elements of the offence must be assessed together.
Is Voluntary Abandonment Possible in the Offence of Sexual Abuse of Children?
The source document states that the provisions on voluntary abandonment regulated under the Turkish Penal Code may be applied to the offence of sexual abuse of children.
Whether voluntary abandonment applies is assessed according to the circumstances of the specific case, including the stage reached by the act and the reason why the perpetrator stopped the conduct.
What Happens If the Age of the Victim or Accused Is Disputed?
In the offence of sexual abuse of children, the ages of both the victim and the accused may significantly affect the legal consequences.
The source document states that where it is alleged that the age appearing in the civil registry is not the person's true age, the criminal court may assess correction of age where it would affect the penalty.
This issue is particularly important because age may alter the classification of the offence or criminal responsibility.
Can the Provisions on Mistake Apply to the Offence of Sexual Abuse of Children?
The source document states that the perpetrator may be mistaken regarding the victim's age, whether the victim has a mental illness or whether the victim's ability to comprehend the legal meaning and consequences of the act has developed.
The Court of Cassation decisions cited in the source document also demonstrate that matters such as the victim's physical appearance, the perpetrator's knowledge of the victim's age and whether a mental condition could be recognised by a non-medical person may be assessed under the mistake provisions of Article 30 of the Turkish Penal Code.
The result of a defence based on mistake must therefore be determined separately in light of the evidence in each specific case.
Can Detention Be Ordered in the Offence of Sexual Abuse of Children?
The source document states that detention may be ordered during the investigation and prosecution of the offence of sexual abuse of children where strong suspicion of an offence exists.
Detention is a protective measure and is separately assessed under criminal procedure rules in the specific case.
Is Interception of Communications Possible in Sexual Abuse of Children Cases?
The source document states that protective measures concerning interception, recording and evaluation of signal information may be used in proceedings relating to the offence of sexual abuse of children.
Application of such protective measures is assessed within the conditions prescribed by the Turkish Criminal Procedure Code.
Is the Offence of Sexual Abuse of Children Subject to Complaint?
The source document states that, as a general rule, a complaint is not required for the investigation and prosecution of the offence of sexual abuse of children.
An important exception is where the offence remains at the level of molestation and the perpetrator is a child, as regulated under Article 103/1 of the Turkish Penal Code. In that case, investigation and prosecution depend on a complaint by the victim, the victim's parent or guardian.
Does Withdrawal of a Complaint Terminate the Case?
For forms of the offence that are not subject to complaint, withdrawal of the complaint by the victim or legal representative does not by itself terminate the investigation or public prosecution.
However, the statutory complaint requirement must be separately considered in the special situation where the act remains at the level of molestation and the perpetrator is a child.
Therefore, the consequence of withdrawing a complaint should be assessed according to the legal form of the offence concerned.
Is Reconciliation Available for the Offence of Sexual Abuse of Children?
The source document states that reconciliation is not available for the offence of sexual abuse of children.
Accordingly, an agreement between the parties during the investigation or prosecution does not mean that the criminal procedure institution of reconciliation will apply.
Limitation Period for the Offence of Sexual Abuse of Children
The source document states that the limitation period for prosecution is 15 years for circumstances under the first paragraph of Article 103, 20 years for the second paragraph and 30 years for the aggravated consequence regulated under the sixth paragraph.
When assessing limitation periods in a specific case, the date of the offence, the circumstances of the victim and other applicable statutory provisions should also be considered.
Which Court Has Jurisdiction Over the Offence of Sexual Abuse of Children?
The source document states that where the sexual abuse remains at the level of molestation, the criminal court of first instance has subject-matter jurisdiction, while the high criminal court has jurisdiction in other circumstances.
The legal classification of the offence may therefore affect not only the amount of the penalty but also the court before which the proceedings are conducted.
Is Defence Counsel Mandatory in Sexual Abuse of Children Cases?
The source document states that the investigation and prosecution of the offence of sexual abuse of children cannot be conducted without appointment of defence counsel and that, due to the seriousness of the offence, it is among the offences for which a defence cannot be conducted without a lawyer.
Mandatory defence requirements in criminal proceedings apply according to the nature of the specific case and accusation.
How Is Evidence Assessed in Sexual Abuse of Children Cases?
In the offence of sexual abuse of children, the victim's age and ability to comprehend the act, statements of the parties, medical and forensic reports where available, digital data, messages, camera recordings, witness statements and other evidence capable of demonstrating the circumstances of the incident may be important for the legal classification of the offence.
Particularly where the victim's age or ability to comprehend the legal meaning and consequences of the act is disputed, correctly determining these matters may directly affect which provision of Article 103 of the Turkish Penal Code applies. The source document particularly emphasises the importance of age and comprehension capacity in classifying the offence.
What Is the Difference Between Sexual Abuse of Children and Sexual Assault?
The offence of sexual abuse of children is regulated under Article 103 of the Turkish Penal Code and contains special provisions concerning sexual conduct directed against child victims.
The source document also states that Article 103 was specifically drafted for victims regarded as children and subjects sexual conduct against them to more severe sanctions.
Therefore, the victim's age is one of the fundamental factors in the legal distinction between sexual assault and sexual abuse of children.
What Is the Difference Between Sexual Abuse of Children and Sexual Intercourse With a Minor?
Articles 103 and 104 of the Turkish Penal Code regulate different offences.
The source document states that children who have completed the age of fifteen and whose ability to comprehend the legal meaning and consequences of the act has developed may fall within Article 103 where force, threat, deception or another reason affecting the will specified by law exists; where the relevant conditions are present, Article 104 may instead apply.
Therefore, age, consent, ability to comprehend the act and the circumstances in which the act occurred are assessed together when distinguishing between the two offences.
What Is the Difference Between Sexual Abuse of Children and Sexual Harassment?
The legal classification between sexual abuse and sexual harassment may vary according to the form of the act.
In a Court of Cassation decision cited in the source document, conduct involving holding the hands of a seventeen-year-old victim, laying the victim down on the seat and attempting to kiss the victim was held to require assessment as simple sexual abuse of a child under Article 103/1 rather than sexual harassment.
Therefore, whether the act involves physical contact and all circumstances of the incident are important for legal classification.
Çekmeköy Criminal Lawyer Assistance in Sexual Abuse of Children Cases
Investigations and prosecutions concerning the offence of sexual abuse of children require detailed criminal law assessment due both to the severity of the sanctions and the application of different legal provisions depending on the victim's age and the nature of the act.
For the victim, it is important that the process be conducted with due regard to the child's rights and protection, that evidence be lawfully collected and that the case be followed effectively; for the suspect or defendant, correct legal classification of the allegation, examination of matters concerning the victim's age and capacity to comprehend the act, assessment of the evidence and effective exercise of defence rights are important.
Therefore, in legal assessments within the scope of a Çekmeköy criminal lawyer, Çekmeköy high criminal court lawyer, Istanbul criminal lawyer, sexual abuse of children lawyer, Article 103 lawyer and sexual offences lawyer, all circumstances of the specific case should be considered together.
Conclusion
The offence of sexual abuse of children is a criminal offence regulated under Article 103 of the Turkish Penal Code, subject to severe sanctions and intended to protect the sexual inviolability of children.
The victim's age and ability to comprehend the legal meaning and consequences of the act are decisive for the establishment of the offence. Article 103 of the Turkish Penal Code prescribes imprisonment for a term of eight to fifteen years for the basic form of sexual abuse and imprisonment for a term of three to eight years for conduct remaining at the level of molestation, while sexual abuse committed by inserting an organ or another object into the body is punishable by imprisonment for a term of not less than sixteen years. Higher statutory minimum penalties apply where the victim is under the age of twelve.
The penalty may be increased where the offence is committed jointly by more than one person, within specified kinship relationships, by persons responsible for the child's care or supervision, or through abuse of influence arising from public duty or a service relationship.
Therefore, in assessments concerning the offence of sexual abuse of children, Article 103 of the Turkish Penal Code, penalty for sexual abuse of a child, sexual abuse by molestation, aggravated sexual abuse, Çekmeköy criminal lawyer, Çekmeköy high criminal court lawyer and Istanbul criminal lawyer, the victim's age, the nature of the act, the relationship between the parties and all evidence in the case should be considered together.