Meeting Request Does Not Constitute Sexual Harassment Offence
Criminal General Assembly 2017/244 E. , 2018/601 K.
“Case Law Text”
Decision Maker
Court of Cassation Chamber : 14th Criminal Chamber
Court :Criminal Court of First Instance
Numbers : 537-48
Upon the appeal of the judgement dated 05.04.2012 and numbered 172-121 given by the Çeşme Criminal Court of Peace on the acquittal of the defendant … for the offence of sexual harassment by the public prosecutor, the 14th Criminal Chamber of the Supreme Criminal Court, which examined the file, dated 23.06.2015 and numbered 10886-7569
“Considering the detailed statement of the complainant, who has no animosity with the defendant reflected in the file, given in the investigation phase and the statements of witness Fevziye at the stages, the defendant called from the mobile phone used by the complainant on different dates within the scope of the execution of a criminal offence decision and said that he liked the first call,
Since it is understood from the content of the whole file that the defendant committed the imputed offence by saying that he loved her and that his blood was boiling, and in the second call he made the next day, he said that he loved her from his heart, it was decided to acquit the defendant of the imputed offence on written grounds that did not comply with the occurrence instead of punishing him in accordance with Articles 105/1, 43/1 of the Turkish Penal Code. Instead of punishing the defendant in accordance with Articles 105/1, 43/1 of the TPC, it was decided to be reversed due to inappropriateness”.
Çeşme 2nd Criminal Court of First Instance dated 11.02.2016 and numbered 537-48;
“…Even if it is accepted that the words spoken by the defendant to the complainant were in the nature of an expression of emotion, that they were not spoken for sexual purposes in the sense sought by the law, and that the words were morally criticisable considering the age difference between the defendant and the complainant, it should be accepted that these words would not give rise to the offence of sexual harassment…” and decided to acquit the defendant as the previous verdict.
Upon the appeal of this verdict by the public prosecutor, the file, which came to the First Presidency of the Court of Cassation with the notification of the Chief Public Prosecutor’s Office of the Court of Cassation dated 30.05.2016 and numbered 187118 with the request of “approval”, was sent to the First Presidency of the Court of Cassation by the Criminal General Assembly dated 14.12.2016 and numbered 873-1723; with the provisional article 10 added to the Law No. 5320 with Article 38 of the Law No. 6763.
The file, which was returned to the First Presidency of the Court of Cassation by the 14th Criminal Chamber of the Court of Cassation, which examined it in accordance with the same article, with the number 375-1186 dated 06.03.2017 and dated 06.03.2017, upon the decision of resistance not being deemed appropriate, was evaluated by the Criminal General Assembly and decided for the reasons explained.
ON BEHALF OF THE TURKISH NATION
CRIMINAL GENERAL ASSEMBLY DECISION
The conflicts between the Special Chamber and the Local Court that need to be resolved by the Criminal General Assembly;
1- Whether the offence of sexual harassment attributed to the defendant has occurred in terms of its legal elements,
2-If it is concluded that the elements of the offence have occurred, whether there are conditions for the application of the chain offence provision,
It is about the determination.
The complainant … was 27 years old and single as of the date of the offence and the defendant … was 50 years old and married,
Upon the complainant’s application to the Çeşme Chief Public Prosecutor’s Office on 25.07.2005 and declaration that the defendant had harassed her, the investigation against the defendant started,
In the indictment dated 27.10.2009 and numbered 875-415 of the Çeşme Chief Public Prosecutor’s Office, it was stated that “The complainant and the suspect knew each other as a family, on the date of the incident, the suspect called the complainant by phone at 23. 00 in the evening, the suspect called the complainant by phone and told her that he liked her, that he loved her from his heart, that his blood was boiling,…after a while the suspect called the complainant again by phone, the complainant turned the speakerphone of the suspect’s phone out, and in the presence of witness Fevziye, he addressed the complainant and said ‘can’t a person love from the heart, I loved you from the heart, it’s very confusing, tell your family that you misunderstood’…” and requested the defendant to be punished for sexual harassment,
It is understood.
In the petition dated 25.07.2008 submitted to the Çeşme Chief Public Prosecutor’s Office, the complainant … stated that the defendant, who was a family friend, called her on 22.07.2008 at 23. 06 on 22.07.2008 at 23.06 and told her that he liked her but could not approach her, that he wanted her to his son Mustafa Çokbaşarıcı who was married, that upon her refusal he said “I feel for you, my blood is boiling, I love you with all my heart”, that after she conveyed this situation to the defendant’s wife, the defendant called her again at 11.16 the next day and said “It’s very complicated, tell me that you misunderstood me”, that she complained about the defendant who harassed her,
In the prosecution office, the defendant was a family friend of the defendant and resided in İzmit, he had also spoken to him on the phone, he did not look for any ulterior motive in their conversations because he was a family friend and he was 55-60 years old, but the defendant called him on 22.07.2008 at 23. 06 on 22.07.2008 at 23.06 and said that he liked her, that he loved her wholeheartedly and that his blood was boiling,
upon which he hung up the phone saying “You are my uncle, how can you think like that when I say my daughter”, he told this situation to his own family the next day, his family reported the situation to the defendant’s wife, the defendant called him again on 23.07.2008 from the line belonging to his daughter and asked him to tell her that the situation was very complicated, that he misunderstood her and to close the matter,
Witness…. at the prosecution office; on 22.07. On 22.07.2008, the complainant started to cry while talking on the phone, said to the person on the other end “How can it be uncle Zeki, I call you uncle, you are my father’s age, how can you say such a thing”, hung up the phone and told him about the situation, the next day the defendant called the complainant again, the complainant put the conversation on speakerphone, the defendant said to the complainant “Can’t a person love from the heart, I loved you from the heart, it was a mess, tell your family that you misunderstood”,
At the hearing The complainant was the daughter of the complainant’s aunt, the defendant was the father-in-law of the complainant’s brother, they were together with the complainant in Çeşme on the date of the incident, the complainant told her that the defendant called her at her workplace and said “I couldn’t take you for my son but I want you for myself”, the complainant answered the speakerphone when the defendant called again in the evening of that day, The defendant told the complainant “I like you, I love you from my heart”, the complainant said “You are my uncle, how can you think like that” and hung up the phone, the defendant called again after a while and told the complainant that he loved the complainant from his heart and asked him to tell his family that there was a misunderstanding because things would get messy,
They made a statement.
The defendant … defended that he said the words stated in the indictment, that he was ignorant, that he regretted it, and that he said these words thinking that the complainant was warm-blooded.
In the joint evaluation of the dispute issues regarding whether the sexual harassment offence attributed to the defendant has occurred in terms of its legal elements and whether there are conditions for the application of the chain crime provision in case it is concluded that the elements of the offence have occurred;
In Article 105 of the Turkish Penal Code No. 5237 in force on the date of the offence;
“(1) A person who harasses a person for sexual purposes shall be sentenced to imprisonment from three months to two years or to a judicial fine upon the complaint of the victim.
(2) If these acts are committed by abusing the influence arising from hierarchy, service or education and training relationship or family relationship or by taking advantage of the convenience provided by working in the same workplace, the penalty to be imposed according to the above paragraph is increased by half. If the victim has to quit his/her job, leave school or his/her family due to this act, the penalty to be imposed cannot be less than one year”.
In the Turkish Dictionary of the Turkish Language Association, harassment is defined as “making uneasy, disturbing or troubling”.
In the preamble of the article, it is defined as “sexually harassing the victim in violation of moral purity”. Although there is no clarity in the law as to what kind of behaviours can be committed by the act of sexual harassment, it is accepted in the doctrine and judicial decisions that the crime of sexual harassment can be committed by words or behaviours targeting the victim and targeting his/her sexuality without violating his/her bodily inviolability.
In order for acts of sexual harassment to be considered as a crime, these acts must have been committed unlawfully, in other words, against the consent of the victim. The consent of a person who has the capacity to give consent to the acts of sexual harassment within the scope of Article 26 of the TCC will remove the criminal responsibility. The existence of consent will be determined according to the characteristics of the concrete case.
Behaviours that constitute sexual harassment may be sudden or continuous, provided that they do not touch the victim’s body. In order for the offence to occur, the perpetrator must have a sexual purpose and the act must be committed against a specific person or persons.
As stated in the decision of the Criminal General Assembly of the Court of Cassation dated 24.03.2015 and numbered 2014/669-68; the material element of the offence of sexual harassment is to harass a person for sexual purposes. The moral element of the offence is intent and the perpetrator must have sexual intent.
While determining whether the act is committed for sexual purposes or which act will constitute the offence of sexual harassment, the requirements of social life, the position of the parties and the relationship between them should be taken into consideration, and in this context, it should be accepted that marriage proposals, requests to meet or expressions of appreciation in accordance with moral rules will not constitute the offence of sexual harassment.
However, there is no doubt that the offence of sexual harassment will occur in cases where the request for marriage or friendship is made in a rude and disturbing style, as in the examples of giving underwear as a gift or with words directed towards sexuality, or if the action continues in a way that disturbs the victim despite the rejection of the offer, or if there are legal or moral obstacles to marriage or friendship, as in the cases where the victim is a child who cannot marry according to the provisions of the Civil Code or one of the parties is married.
When the matters in dispute are evaluated in the light of these explanations,
In their statements, the complainant … and the defendant … stated that they were family friends. According to the statement of witness Fevziye Ak, the defendant is the father-in-law of the complainant’s brother.
On the date of the offence, the complainant was 27 years old and single and the defendant was 50 years old and married. It is also seen from the scope of the file that there was no previous emotional relationship between the parties.
From the statements of the complainant and the witnesses and the defendant’s confession, there is no doubt that the defendant told the complainant in his first call that he liked her, that he loved her, that his blood was boiling, and in his second call after the complainant reported the situation to the defendant’s wife, he told her that he loved her wholeheartedly, that there was a mess and that she should tell her family that the incident was caused by a misunderstanding.
Accordingly;
Considering the age difference between the complainant and the defendant, who did not have an emotional relationship between them before, the marital status of the defendant and the social relationship between the parties; the defendant’s first call to the complainant in a way that disturbs the complainant sexually in violation of moral purity constitutes the offence of sexual harassment, however, since it is understood that the defendant made the second call with the aim of preventing the outrage in the family and the words uttered in this context do not have a sexual purpose, it should be accepted that there are no conditions for the application of Article 43/1 of the TPC against the defendant.
In this respect, the decision of the Local Court subject to resistance should be reversed due to the improper decision to acquit the defendant instead of convicting him for the offence of sexual harassment without applying the provision of chain offence.
The General Assembly Member who disagrees with the majority opinion in terms of the first dispute issue …; “The decision of the majority regarding the legal elements of the offence of sexual harassment against the defendant … is not appropriate. It is as follows;
The defendant … and the complainant … met as a family and the defendant lives in Çeşme district and the complainant lives in İzmit province. The complainant was 29 years old on the date of the offence and was not married. Defendant called the mobile phone used by the complainant and said in his first call that he ‘liked, loved, his blood was boiling’, and in his second call the next day, he said that he ‘loved from the heart’. There is no doubt that these words were said.
The offence of sexual harassment regulated under Article 105 of the TPC is ‘disturbing the victim sexually in violation of moral purity, which does not constitute a violation of one’s bodily inviolability’. According to the definitions made in the doctrine, sexual harassment is ‘a person disturbing another person without his/her consent with words, eyes or body, aiming at his/her sexuality’, ‘making disturbing movements towards the decency and chastity of individuals’ or ‘any kind of sexual behaviour that causes discomfort to the victim’ (Özbek, Özer Veli TCK İzmir Şerhi Yeni Türk Ceza Kanunun Anlamı Vol II sh 62).
According to the text of the article, the behaviour constituting sexual harassment must be done for sexual purposes. Since the perpetrator is explicitly stated as ‘the person who harasses for sexual purposes’ in Article 105 of the TPC, the defendant must act with a special motive ‘sexual purpose’.
In our concrete case, the defendant … did not aim to ‘sexually harass’ the complainant. He only made the conversations in question as an expression of love and emotion. Although the defendant can be morally criticised due to the fact that he is married and the age difference, the legal elements of the imputed offence have not occurred since he did not act for sexual purposes. For this reason, I disagree with the decision of the honourable majority to overturn the decision to resist”,
Four members of the General Assembly, who disagreed with the majority opinion, voted against with similar opinions.
CONCLUSION:
For the reasons explained
1- The judgement of Çeşme 2nd Criminal Court of First Instance dated 11.02.2016 and numbered 537-48, which is subject to the decision of resistance, is DISMISSED due to the inconsistency of deciding the acquittal of the defendant instead of his conviction for the crime of sexual harassment without applying the provision of chain offence,
2- In the discussion held on 04.12.2018, it was decided unanimously in terms of the first dispute issue and unanimously in terms of the second dispute issue that the file be referred to the Chief Public Prosecutor’s Office of the Court of Cassation for return to its place.
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