What is the Crime of Child Sexual Abuse?
The crime of sexual abuse of a child occurs by exhibiting sexual behavior in the form of physical contact with the body of a child of a certain age specified by law. The crime is regulated in the “Crimes Against Sexual Immunity” section of Article 103 of the Turkish Penal Code No. 5237. In sexual abuse, the victim is a child and is the most important element of the crime. A child is defined in Article 6/1-a of the Turkish Penal Code as “a person who has not yet reached the age of 18”.
In terms of sexual abuse crimes, the concept of child is considered in three separate categories:
Sexual abuse of children under 15 years of age,
Sexual abuse of children over the age of 15 who have not yet developed the ability to perceive the legal meaning and consequences of the act committed against them,
Sexual abuse of children between the ages of 15 and 18 based solely on force, threat, deception or any other reason that affects the will.
Elements of the Crime of Simple Sexual Abuse of Children
Basic Form of the Crime of Simple Sexual Abuse of a Child: The crime of simple sexual abuse is the basic form of the crime of sexual abuse of a child and consists of sexual behavior performed on the child’s body for the purpose of satisfying sexual desires but not reaching the level of sexual intercourse. For the crime of simple sexual abuse to occur, it is sufficient for the acts performed to be objectively carnal; It is not necessary for the perpetrator’s lustful desires to be actually satisfied.
Crime of Simple Sexual Abuse of a Child through Molestation: Molestation is considered the mildest form of the crime of simple sexual abuse of a child, requiring less punishment. In the crime of sexual abuse of a child by molestation, as in all other sexual abuse crimes, physical contact with the victim child’s body is required. Other acts committed for sexual purposes without physical contact are considered the crime of sexual abuse of a child. For example, asking the victim child “Shall I touch her legs” for sexual purposes is considered sexual harassment, and touching her in any way is considered sexual abuse by molestation.
Molestation; It refers to the superficial, temporary and mild sexual behavior of the perpetrator towards the victim child. For example, touching the child for sexual purposes, kissing once, etc. Sexual behavior such as harassment is considered a crime of sexual abuse.
The main difference between the basic form of the crime of simple sexual abuse and the crime of sexual abuse by harassment, which requires less punishment; The act of molestation occurs when the victim child’s body is touched with a sudden and abrupt action, and the basic form of the crime of simple sexual abuse of a child occurs when multiple consecutive behaviors are performed against the child, reaching the level of sexual exploitation.
It should be particularly noted that; For children under the age of 15, it does not matter whether the victim consents to the act. Because, while the law did not include sexual acts committed against children who were “15 years old but not 18 years old” with their consent, within the scope of the crime of sexual abuse, and gave importance to the consent of children in this category, it considered any sexual behavior against children “under 15 years of age” as a crime of sexual abuse of children, even if they gave consent. Since the child’s consent does not relate to a right that the child can absolutely exercise, it cannot be accepted as a reason for compliance with the law. Therefore, consent to sexual abuse by children under the age of 15 does not prevent the perpetrator from being punished.
Penalty for the Crime of Simple Sexual Abuse of Children TCK 103
The punishment for simple sexual abuse of a child is as follows:
A person who sexually abuses a child is punished with imprisonment from 8 to fifteen years.
By molestation, that is, if the sexual abuse remains at the level of molestation, 3
sentenced to imprisonment from 1 to 8 years.
If the victim has not completed the age of twelve, the penalty cannot be less than 10 years in the case of simple sexual abuse and 5 years in the case of molestation.
If the perpetrator of a crime that remains at the level of harassment is a child, investigation and prosecution depend on the complaint of the victim, his/her parent or guardian.
Complaint Period of the Crime, Statute of Limitations and Reconciliation
Reconciliation is an agreement between the person accused of a crime and the person who is the victim of the crime by communicating through a mediator. Sexual abuse crimes are not crimes within the scope of reconciliation. Your crime; Settlement provisions do not apply to sexual crimes, regardless of whether they are simple sexual abuse, molestation or qualified sexual abuse.
If the perpetrator of the crime of sexual abuse by molestation is an underage child, the crime is a crime subject to complaint. There will be no investigation unless the victim’s parent or guardian files a complaint. The parent or guardian of the victim must exercise his/her right to complain within 6 months from the commission of the crime. Dropping the complaint is the reason for the dismissal of the criminal case. Withdrawing the complaint is possible at the prosecution stage after the investigation or criminal case has been opened. If the victim gives up the complaint, a decision is made that there is no need for prosecution during the investigation phase and the victim cannot use his/her right to complain about the same incident again. If the complaint is withdrawn at the prosecution stage, which is the stage where the criminal case is opened, the court decides to dismiss the case.
All sexual abuse crimes other than the above situation are prosecuted ex officio by the prosecutor’s office. These crimes are not among the crimes subject to complaint.
The statute of limitations is a criminal law institution that results in the dismissal of a criminal case if a lawsuit has not been filed after a certain period of time has passed since the date of the crime, or if the lawsuit has not been concluded within the legal period despite being filed. The statute of limitations for the basic form of the crime of child sexual abuse is 15 years. The sexual crimes in question can be investigated at any time within this limitation period and a public lawsuit can be filed against the perpetrator.