Sexual Harassment Offence - Üsküdar Criminal Lawyer
The offence of sexual harassment is regulated under Article 105 of the Turkish Penal Code and criminalises conduct whereby a person is disturbed through behaviour carried out for a sexual purpose. One of the most important characteristics of the offence is that it may be committed through words, writing or conduct without physical contact with the victim's body. Where physical contact exists, different sexual offences regulated under Articles 102, 103 or 104 of the Turkish Penal Code may arise depending on the circumstances of the case.
Sexual harassment may occur in different forms, ranging from verbal expressions and messages to electronic communications and exhibitionist conduct. Therefore, when determining whether particular conduct constitutes sexual harassment, not only the words used or acts performed but also whether the conduct had a sexual purpose and all circumstances of the specific case should be considered together.
In this context, for matters concerning the sexual harassment offence, Article 105 of the Turkish Penal Code, penalty for sexual harassment, sexual harassment by message, sexual harassment through social media, Üsküdar criminal lawyer, Üsküdar sexual harassment lawyer and Istanbul criminal lawyer, it is important to correctly assess the elements of the offence, aggravated forms, complaint requirement and evidence.
What Is the Sexual Harassment Offence?
Sexual harassment is the disturbance of another person for a sexual purpose without physical contact.
The offence may be committed through words, writing or conduct. Depending on the circumstances, sexually motivated verbal remarks, sending messages, emails or letters, disturbing looks, hand gestures, blowing kisses, proposing sexual intercourse or displaying one's sexual organs may constitute sexual harassment.
However, not every disturbing act constitutes sexual harassment. The existence of a sexual purpose is important for the formation of the offence.
Under Which Law Is Sexual Harassment Regulated?
Sexual harassment is regulated under Article 105 of the Turkish Penal Code.
Under Article 105, a person who sexually harasses another person is subject to punishment upon the victim's complaint. Where the act is committed against a child, the law provides for a more severe sanction.
The same article regulates certain circumstances involving public office, employment relationships, family relationships, working in the same workplace, electronic communication tools and exhibition as aggravated forms of the offence.
What Are the Elements of the Sexual Harassment Offence?
For sexual harassment to occur, there must first be conduct carried out for a sexual purpose.
The conduct must be disturbing to the victim and the absence of physical contact is one of the distinguishing characteristics of the offence.
The perpetrator must act for a sexual purpose. Sexual harassment is an intentional offence and cannot be committed through negligence. Even where conduct is intentional, the elements of sexual harassment may not be established if there is no sexual purpose.
Is Physical Contact Required for Sexual Harassment?
No.
One of the fundamental characteristics of sexual harassment is that it is committed without touching the victim's body.
Verbal statements, written messages, electronic communications, gestures, hand movements or exhibitionist conduct may constitute sexual harassment without physical contact.
Where physical contact exists, depending on the circumstances, sexual assault under Article 102, sexual abuse of children under Article 103 or other offences that may fall within Article 104 may become relevant.
What Is the Difference Between Sexual Harassment and Sexual Assault?
One of the principal distinctions between sexual harassment and sexual assault is physical contact.
Sexual harassment covers sexually motivated conduct performed without touching the victim's body.
Sexual assault involves physical interference with the victim's bodily integrity.
Accordingly, the precise nature of the perpetrator's conduct must be examined in detail when determining whether an incident constitutes sexual harassment or another sexual offence.
Who Can Be the Perpetrator of Sexual Harassment?
Anyone may be the perpetrator of sexual harassment.
The perpetrator does not need to be of a particular gender or have a special relationship with the victim.
However, certain relationships between the perpetrator and victim may result in an aggravated form of the offence. These include taking advantage of a public office, employment relationship, family relationship or working in the same workplace.
Who Can Be the Victim of Sexual Harassment?
Anyone may be a victim of sexual harassment.
Whether the victim is an adult or a child may produce different legal consequences.
As stated in the supplied material, while the basic form committed against an adult provides alternative sanctions, sexual harassment committed against a child is punishable only by imprisonment.
Can Sexual Harassment Be Committed Against a Child?
Yes.
Sexual harassment may also be committed against children. The supplied material states that, in accordance with Court of Cassation decisions, sexually motivated conduct not involving physical contact may also be assessed as sexual harassment when directed against children.
In determining the legal characterisation of conduct against a child, whether physical contact occurred and the other circumstances of the case are particularly important.
What Conduct May Constitute Sexual Harassment?
Sexual harassment is an offence that may be committed through different forms of conduct.
Sexually motivated verbal remarks, messages, emails or letters, disturbing looks, sexual hand gestures, blowing kisses, proposing sexual intercourse or displaying sexual organs may constitute examples.
However, the outward appearance of the conduct alone is insufficient. Sexual purpose and the circumstances of the specific case must be assessed.
Does Every Friendship or Dating Proposal Constitute Sexual Harassment?
No.
A request to meet, become friends or go out for a meal that is not persistent, does not have a sexual purpose and is not objectively disturbing should not by itself be regarded as sexual harassment.
Similarly, asking whether a person is married or engaged or expressing affection or interest does not constitute sexual harassment in every circumstance.
However, continuing the conduct despite a negative response, using a disturbing method or giving the words and behaviour a sexual character may change the assessment.
Can Sexual Harassment Be Committed by Message?
Yes.
Sexual harassment may be committed through messages.
Where sexually motivated harassment is carried out through SMS, messaging applications or other electronic communication methods, the aggravated form under Article 105/2 may arise because the perpetrator has taken advantage of electronic communication tools.
The supplied material likewise states that sexual harassment by message falls within an aggravated form subject to a more severe penalty than the basic offence.
Can Sexual Harassment Be Committed Through Social Media?
Yes.
Sexually motivated messages, images or other communications sent through social media platforms may constitute sexual harassment depending on the circumstances.
Committing the offence by taking advantage of electronic communication tools is treated as an aggravated form under Article 105/2.
Message contents, account information and digital records may be particularly important evidence in such cases.
What Is the Penalty for Online Sexual Harassment?
The supplied material states that sexual harassment committed over the internet falls under Article 105/2-d as an aggravated form committed by taking advantage of electronic communication tools.
In this situation, the penalty imposed for the basic offence is increased by one half.
Can Sexual Harassment Be Committed by Telephone?
Yes.
Sexual harassment may be committed face-to-face or by telephone and other communication tools.
Depending on the circumstances, sexually motivated conduct carried out through telephone calls, messages or electronic communication methods may constitute an aggravated form under Article 105/2.
What Is Verbal Sexual Harassment?
Words carrying a sexual purpose and disturbing the victim may constitute sexual harassment provided that there is no physical contact.
However, not every rude, disturbing or inappropriate statement constitutes sexual harassment.
The content of the statement, the environment in which it was made, the relationship between the parties and whether the perpetrator acted for a sexual purpose should be assessed.
Does Persistently Sending Messages Constitute Sexual Harassment?
Persistence alone is insufficient to establish sexual harassment.
The messages must carry a sexual purpose.
Continuing to send sexually motivated messages after the victim has indicated that they are unwanted may be important in assessing the case.
Depending on the content of the messages and nature of the conduct, other criminal offences may also become relevant.
Is Displaying Sexual Organs Sexual Harassment?
Exhibitionist conduct directed at a specific person for a sexual purpose may constitute sexual harassment.
Article 105/2 includes commission of the offence through exhibition among its aggravated forms.
The supplied material also identifies displaying sexual organs to the victim as an example of sexual harassment reflected in judicial decisions.
Is Secretly Recording Images Sexual Harassment?
The supplied material states that where images of the victim are secretly recorded for a sexual purpose, the act should be assessed not as sexual harassment but as violation of privacy.
This demonstrates that not every sexually motivated act automatically falls within Article 105.
It must be separately determined which statutory offence contains the elements of the specific conduct.
Is Sexual Harassment an Intentional Offence?
Sexual harassment is an intentional offence.
The perpetrator must act directly for a sexual purpose.
Sexual harassment cannot be committed through negligence. Even if the conduct is intentional, Article 105 may not apply where a sexual purpose is absent.
Is Attempt Possible in the Sexual Harassment Offence?
The supplied material states that an attempt to commit sexual harassment is possible.
Where the perpetrator directly begins execution through acts suitable for committing the intended sexual harassment offence but cannot complete the act for reasons beyond their control, the offence may remain at the attempt stage.
Can Successive Offence Provisions Apply to Sexual Harassment?
Yes.
Where multiple acts constituting sexual harassment are committed against the same person at different times, or in other circumstances where the statutory requirements are met, successive offence provisions may apply.
The supplied material states that where sexual harassment acts are committed against different persons at different times, rules governing separate offences apply instead.
What Are the Aggravated Forms of Sexual Harassment?
Under Article 105/2, sexual harassment committed:
by taking advantage of the convenience provided by public office, an employment relationship or a family relationship,
by a guardian, educator, teacher, caregiver, foster parent, healthcare provider or person with a duty of protection, care or supervision,
by taking advantage of working in the same workplace,
by taking advantage of postal or electronic communication tools,
or through exhibition
constitutes aggravated forms requiring a more severe penalty.
What Is Workplace Sexual Harassment?
Sexual harassment committed by taking advantage of working in the same workplace is regulated as an aggravated form under Article 105/2.
The important issue is not merely that the perpetrator and victim work at the same workplace but that the convenience created by that situation is used to commit the offence.
Is Sexual Harassment by a Public Official an Aggravated Form?
Sexual harassment committed by taking advantage of the convenience provided by public office constitutes an aggravated form requiring a more severe penalty.
Similarly, taking advantage of an employment relationship or family relationship is also covered by Article 105/2.
How Is Sexual Harassment by a Teacher or Caregiver Assessed?
Commission of sexual harassment by a guardian, educator, teacher, caregiver, foster parent, healthcare provider or person with a duty of protection, care or supervision is regulated as an aggravated form under Article 105/2.
This provision treats the use of the relationship of trust and supervision between the perpetrator and victim as a more serious circumstance.
What Happens If the Victim Leaves Work or School Because of Sexual Harassment?
Where the victim is forced to leave their job, school or family because of conduct regulated under Article 105/2, the supplied statutory text states that the sentence imposed cannot be less than one year.
This consequence additionally takes into account the serious impact of the harassment on the victim's life.
What Is the Penalty for Sexual Harassment?
According to Article 105 as reproduced in the supplied material, the basic form of the offence is punishable by imprisonment from three months to two years or a judicial fine.
Where the act is committed against a child, imprisonment from six months to three years is prescribed.
Where an aggravated circumstance exists, the penalty determined for the basic offence is increased by one half.
What Is the Penalty for Sexual Harassment Against a Child?
According to Article 105 reproduced in the supplied material, where the act is committed against a child, imprisonment from six months to three years is prescribed.
The material further states that while the basic offence against an adult provides alternative sanctions, sexual harassment against a child is punishable only by imprisonment.
Is Sexual Harassment Subject to a Complaint?
According to the supplied material, the basic form of sexual harassment is subject to a complaint.
For aggravated forms falling under Article 105/2, a complaint is not required.
The material states that withdrawal of an existing complaint may result in dismissal of proceedings for the basic form, whereas criminal proceedings continue for aggravated forms.
What Is the Complaint Period for Sexual Harassment?
The supplied material states that the complaint period for the basic form of sexual harassment is six months.
For offences subject to complaint, the date from which this period begins should be assessed according to the circumstances of the specific case.
Can a Complaint for Sexual Harassment Be Withdrawn?
For the basic form of the offence that is subject to complaint, withdrawal of the complaint may affect continuation of criminal proceedings.
The supplied material states that withdrawal of the complaint results in dismissal of the case for the basic form, while public prosecution continues for aggravated forms.
Is Mediation Possible for Sexual Harassment?
The supplied material states that the reconciliation procedure is not applicable to the sexual harassment offence.
Accordingly, a sexual harassment investigation should not be treated as falling within the criminal reconciliation procedure.
What Is the Limitation Period for Sexual Harassment?
The supplied material states that the ordinary criminal limitation period for sexual harassment is eight years.
The date of the incident and any legal circumstances affecting limitation periods must be separately examined in each case.
What Evidence Is Used in Sexual Harassment Cases?
Sexual harassment frequently occurs in circumstances where there are no direct witnesses, making evidence particularly important.
Witness statements, message contents, call records and camera footage may be used to determine whether the offence occurred.
The supplied material also states that statements of the victim that are consistent and compatible with the ordinary course of life may constitute important evidence, while each case must nevertheless be assessed according to its own circumstances given the nature of the allegation.
Can Messages Be Evidence in a Sexual Harassment Case?
Yes.
SMS messages, social media messages, emails and correspondence through messaging applications may constitute important evidence when assessing a sexual harassment allegation.
Where possible, not only selected parts of the messages but the entire conversation, date and time information and communications before and after the incident should be considered together.
Can Camera Footage Be Used in a Sexual Harassment Case?
Depending on the nature of the incident, camera footage may constitute important evidence.
Particularly where the alleged conduct occurred in a workplace, common area or public place, recordings may assist in determining how the incident occurred.
The supplied material also identifies camera footage among evidence that may be used in proving sexual harassment.
Is the Victim's Statement Evidence in a Sexual Harassment Case?
The victim's statement is one of the items of evidence assessed in criminal proceedings.
The supplied material states that statements consistent with the ordinary course of life and internally consistent may be regarded as important evidence.
Nevertheless, the court determines whether the offence has been proven by assessing all evidence together.
How Is the Defendant's Defence Assessed in a Sexual Harassment Case?
Criminal proceedings require consideration not only of the allegation but also of the defendant's defence and all evidence in the case file.
Whether a sexual purpose existed, the content of the words or conduct, the overall communication between the parties, witness accounts and digital records may be important.
The Court of Cassation examples included in the supplied material also demonstrate that certain statements and conduct lacking sexual content have been considered not to satisfy the statutory elements of the offence.
Which Court Has Jurisdiction Over Sexual Harassment Cases?
The supplied material states that sexual harassment cases are tried before criminal courts of first instance.
Territorial jurisdiction is determined according to criminal procedural rules and the place where the offence was committed.
Where Is a Sexual Harassment Case in Üsküdar Heard?
For an alleged sexual harassment offence committed in Üsküdar, the criminal court of first instance is the relevant court in terms of subject-matter jurisdiction.
The place in which the investigation and prosecution will be conducted is determined according to the place where the offence was committed and the territorial jurisdiction rules of criminal procedure.
Particularly for acts carried out through the internet or electronic communication, territorial jurisdiction should be separately assessed according to the circumstances.
Role of a Criminal Lawyer in Sexual Harassment Cases
Sexual harassment cases may require detailed legal examination regarding whether the conduct had a sexual purpose, whether physical contact occurred, whether the basic or aggravated form of the offence is established and how the evidence should be assessed.
For the victim, conducting the complaint process, preserving digital and other evidence and following the investigation may be important. For the suspect or defendant, it is necessary to assess whether the alleged conduct satisfies the statutory elements of the offence and to examine the evidence contained in the case file.
Therefore, within the scope of an Üsküdar criminal lawyer, Üsküdar sexual harassment lawyer, sexual harassment offence lawyer, Article 105 lawyer and Istanbul criminal lawyer, the specific circumstances of each case should be assessed comprehensively.
Conclusion
Sexual harassment is an offence regulated under Article 105 of the Turkish Penal Code and criminalises sexually motivated disturbing conduct carried out without physical contact.
Verbal statements, messages, electronic communication tools, exhibition and other conduct may constitute sexual harassment depending on the circumstances. However, not every disturbing statement or act constitutes sexual harassment. Whether the perpetrator acted for a sexual purpose and all circumstances of the act must be considered.
Taking advantage of public office or an employment relationship, a family relationship, duties of protection or supervision, working in the same workplace, use of electronic communication tools and exhibition may result in aggravated forms of the offence.
The complaint requirement for the basic form, absence of such a requirement for aggravated forms, evidential importance of messages and electronic records and the distinction between sexual harassment and other sexual offences are among the significant issues in criminal proceedings.
Therefore, in matters concerning the sexual harassment offence, penalty for sexual harassment, Article 105 of the Turkish Penal Code, sexual harassment by message, online sexual harassment, workplace sexual harassment, Üsküdar criminal lawyer, Üsküdar sexual harassment lawyer and Istanbul criminal lawyer, each case should be assessed according to its specific circumstances and available evidence.