Child Sexual Abuse Offence
CHILD SEXUAL ABUSE OFFENCE
Abuse means abusing and exploiting someone’s goodwill. Sexual abuse of a child means the sexual abuse and exploitation of a minor victim.
The subject of the offence of sexual abuse of a child is the body, sexual inviolability and sexual development of the child against whom sexual abuse is committed.
The legislator has used the term ‘sexual assault’ for sexual acts involving contact against persons over the age of 18, and the term ‘sexual abuse’ for acts involving contact against persons under the age of 18.
Article 103/1 of the Turkish Penal Code No. 5237 regulates the offence of simple sexual abuse and Article 103/2 regulates the offence of qualified sexual abuse. The aggravating circumstances of the offence are regulated in Articles 103/3 and 103/4 of the TPC, and the aggravated forms of the offence are regulated in Articles 103/5 and 103/6 of the TPC.
Article 103 of the Turkish Penal Code No. 5237, which regulates the offence of sexual abuse, corresponds to Articles 414, 415, 416/1-2, 421/2c of the Turkish Penal Code No. 765. It also corresponds to some of the aggravating factors regulated in Articles 417 and 418 of the TPC No. 765.
It is possible to divide the offence of sexual abuse of the child into three as the simple sexual abuse offence regulated under Article 103/1 of the TPC, the sexual abuse at the level of molestation regulated under Article 103/1-2 of the TPC and the qualified sexual abuse offence regulated under Article 103/2 of the TPC.
Simple sexual abuse and sexual abuse at the level of molestation are all kinds of sexual behaviours on the child’s body, which are done with the aim of satisfying sexual desires but do not reach the level of sexual intercourse.
The qualified sexual abuse offence regulated in Article 103/2 of the TPC is sexual acts committed by inserting an organ or other object into the body of the victim who is under the age of 18. These acts do not necessarily aim to satisfy sexual desires. It is sufficient that it is carried out with sexual purpose.
If the contact element does not occur, the offence of sexual abuse does not occur, the offence of sexual harassment occurs.
İf the element of contact has occurred, but in the form of sudden and intermittent movements, the offence of simple sexual abuse does not occur, but the offence of simple sexual abuse at the level of molestation occurs.
If the element of contact has occurred and the defendant’s actions show continuity, if they are not sudden and intermittent, the offence of simple sexual abuse occurs.
In order to determine which is the action of the defendant, the manner and duration of the action is important and the characteristics of each case should be evaluated separately.
JUDICIAL COURT DECISIONS RELATED TO THE OFFENCE OF CHILD SEXUAL ABUSE
14.CD dated 17.03.2021, 2016/10467 Esas, 2021/2161 Decision
“…The child dragged to the offence took the victim Volkan and his siblings Dilara and Dorukhan to his house on 13.09. 2021, he took the victim Volkan, whom he saw in the park, and his siblings, the victims Dilara and Dorukhan, to his house, and then undressed nine-year-old Dilara and tried to insert his sexual organ into his anus after rubbing it on his buttocks, and upon the victim’s resistance, it is understood from the scope of the file that he left spontaneously without any other external reason preventing him from completing his action other than his insurmountable resistance, and considering that his action, which has come to light in its current state, constitutes the crime of sexual abuse of the child, instead of his conviction, he was convicted of the crime of attempted qualified sexual abuse of the child as written…”
14.CD dated 08.03.2021, 2020/5581 Esas, 2021/1887 decision
“… Considering the sincere statements of the victim at the stages, the defence and the entire file scope, the defendant’s action of hugging the victim, who was eighteen years old on the day of the incident, and squeezing her buttocks, constituted the crime of sexual abuse of the child by means of molestation regulated in Article 103/1-c.2 of the Turkish Penal Code No. 5237 due to its short-term, sudden and intermittent realization, and the determination of excessive punishment by establishing a written sentence without considering that it constitutes the crime of sexual abuse of the child by molestation…
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