Prostration Offence
I would like to clarify this issue, which we unfortunately often encounter today. W.hat is prostration ? What is assault? What are the elements that distinguish both from each other? As follows;
Offences against sexual inviolability; In the Turkish Penal Code, it is grouped under the titles of sexual assault and sexual abuse of children.
Sexual Assault
Article 102/1 of the TPC: “A person who violates the bodily inviolability of a person by sexual acts shall be sentenced to imprisonment from five to ten years upon the complaint of the victim. If the sexual behaviour remains at the level of molestation, he/she shall be sentenced to imprisonment from two to five years.”
Sexual Abuse of Children
Article 103/1 of the TPC:
“A person who sexually abuses a child shall be sentenced to imprisonment from eight to fifteen years. If the sexual abuse remains at the level of molestation, a prison sentence of three to eight years shall be imposed. If the victim has not completed the age of twelve, the penalty shall not be less than ten years in case of abuse and five years in case of molestation. In case the perpetrator of the offence at the level of molestation is a child, investigation and prosecution depends on the complaint of the victim, his/her parent or guardian. Sexual abuse is defined as
a) Any sexual behaviour committed against children who have not completed the age of fifteen or who have completed the age of fifteen but whose ability to perceive the legal meaning and consequences of the act has not developed,
b) Sexual behaviours performed against other children only on the basis of force, threat, deception or any other reason affecting the will are understood.”
The legislator has defined the touching of the human body with “sexual behaviours” as sexual assault if the victim is an adult and sexual abuse if the victim is a child. According to the provisions of paragraph 1 of these articles, the acts that constitute the material element of the crimes of sexual assault and sexual abuse are acts that violate the bodily inviolability and include all kinds of bodily contact that have the characteristics of sexual behaviour, continuously or momentarily, without the insertion of organs or other objects into the body. Depending on their intensity (e.g. continuous or momentary), they will constitute the offence of simple sexual assault, sexual abuse of a child or indecent assault.
What is the difference between prostration and assault?
Prostration:
It is a sudden and intermittent (non-continuous) behaviour that involves bodily contact on the victim and does not reach the level of inserting an organ or other object into the body. In the case of groping, the instant touching, contact, hugging, non-insistent sexual caressing, non-repetitive kissing, in short, behaviours that can be terminated by the victim’s reaction. It is important to note that in order to be able to talk about indecent assault, it must be determined that the instantaneous acts have a sexual purpose.
The suddenness of sexually explicit acts does not mean that the perpetrator committed the act with an impulse at that moment. The element of immediacy that we need to look at here is that the act is instantaneous when it occurs on the victim and is of a non-repetitive (non-continuous) nature.
Assault:
It is the intensified and persistent continuation of sexual acts that involve bodily contact with the victim and do not reach the level of inserting an organ or other object into the body, and which are not sudden but continuous for the satisfaction of the perpetrator’s sensual feelings. Continuity here does not mean that the act is spread over a long period of time and repeated many times. What is important is all kinds of persistent acts committed directly on the victim, showing continuity, aimed at satisfying sexual desires.
In order for us to accept that the offence of groping has occurred, it is sufficient that the sexually explicit act is performed instantaneously. Momentary, intermittent and non-continuous are elements that are specific to the action, not to the thought, and constitute the determining criteria of the offence of indecent assault. In the light of this information, if the perpetrator performs the pre-planned act instantaneously and repeats it at different times, it falls within the scope of the offence of indecent assault and the provisions of Article 43 of the TCC on chain offences are also applied to this offence.
Court of Cassation 14th CD, , 2018/1853 E., 2019/9781 K., 15.05.2019 T.
“…according to the victim’s statement and the scope of the whole file, the defendant’s act of kissing the victim on the right cheek and putting his hand on her shoulder at the time of the incident was sudden, short-term and intermittent, and did not constitute continuity, and therefore, it required a reversal, and since the appeals of the defendant’s defence were deemed appropriate in this respect, the verdict was reversed in accordance with Article 321 of the Code of Criminal Procedure No. 1412 in accordance with Article 8/1 of the Law No. 5320. It was unanimously decided on 15.05.2019…”
14th CD of the Court of Cassation, dated 17.04.2019, 2018/7540 E., 2019/9184 K., 17.04.2019 T.
“… It is understood from the content of the whole file that on the day of the incident, the defendant hugged the victim and kissed her neck and caressed her breasts over her dress and when he made a move to kiss her on the lips, the victim withdrew, and it is understood from the content of the whole file that the action occurred in a sudden and intermittent manner and remained at the level of molestation due to its short duration, while it is necessary to establish a verdict, taking into account that the evidence and the content of the file also contradict the evidence that the action in question exceeds the level of molestation, the court of first instance, instead of accepting the appeal against the conviction verdict established with the reasoning that does not comply with Article 230/1-b of the Code of Criminal Procedure No. 5271, it is against the law to oppose Article 289/1-g of the same Law by deciding to reject it in writing.
It is contrary to the law to oppose Article 289/1-g of the same Law by deciding to reject the appeal against the conviction verdict established with a reason that does not comply with Article 230/1-b of the Code of Criminal Procedure No. 5271, and since the appeals of the defendant’s defence are deemed appropriate in this respect, the Ankara Regional Court of Justice 17. Criminal Chamber of the Ankara Regional Court of Appeals No. 17, dated 10.11.2017 and numbered 2017/2585 Main, 2017/2190 Decision, it has been decided to overturn the decision to reject the appeal on the merits in accordance with Article 302/2-4 of the Code of Criminal Procedure No. 5271…”
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