Offences that hurt the conscience of society and the law’s response
Sexual offences against children, who are the most vulnerable members of society, are acts that inflict deep wounds not only on the victim but also on the conscience of the whole society. The role of the legal system in combating these offences is both to provide deterrent penalties and to protect the best interests of the child during the judicial process. Every case reported in the media reminds us once again how grave these offences can be and how sensitive the legal process should be. In this article, we will discuss the legal definition of sexual offences against children under the TPC, their elements, special procedures in the trial process and the difficulties of proof.
Basic Types and Elements of Offences under the TPC
The law categorises sexual acts against children in different categories according to the nature of the act and the age of the child:
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Sexual Abuse of a Child (TCK 103): This offence is the main type of offence with the most severe sanctions. The law analyses the offence under two main headings:
- Stalking Level Abuse (TPC 103/1): It refers to sudden, intermittent and non-continuous physical contact with sexual purposes against the child. For example, touching or kissing the sexual organs of the child. The penalty for this offence is imprisonment from eight to fifteen years.
- Abuse by Inserting an Organ or Other Object into the Body (TCK 103/2): This is a qualified form of the offence and constitutes the most severe form of sexual assault. In this case, the penalty is imprisonment for not less than sixteen years.
Age Factor: According to TPC 103, any child who has not completed the age of 15 is not considered to have the ability to perceive the legal meaning and consequences of any sexual behaviour towards him/her. Therefore, the consent of the child is legally invalid and the act constitutes the offence of abuse in any case. Sexual acts against children between the ages of 15-18 constitute the crime of abuse if they are committed by force, threat, trickery or any other reason affecting the will.
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Sexual intercourse with a minor (TCK 104): This offence punishes sexual intercourse with a child between the ages of 15-18 with his/her consent. The legal value protected here is the sexual freedom and development of the child who has not completed the age of 18. The law recognises that the consent of a child in this age group to sexual intercourse cannot be given with full maturity. However, the investigation and prosecution of this offence depends on the complaint of the victim.
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Sexual Harassment (TCK 105): These are sexually disturbing behaviours that do not involve physical contact with the child. For example, saying sexually explicit words, sending messages, showing the sexual organ. If this act is committed against a child, the penalty is increased according to TPC 105/2.
Special Procedures in the Trial Process and Protection of the Child
The judicial process in child abuse cases involves different and more sensitive procedures than standard criminal cases. The aim is to prevent re-traumatisation (secondary trauma) of the traumatised child in the judicial process.
- Child Monitoring Centres (CIM): Statements of children suspected of abuse are taken in these centres by specially trained forensic interviewers in the presence of professionals such as forensic medicine specialists, psychologists and social workers. The prosecutor and lawyers watch the testimony from an adjoining room with a camera and sound system and convey their questions to the interviewer. In this way, the child gives his/her statement in one go, without entering the cold and intimidating atmosphere of the courtroom.
- Judicial Interview Rooms (AGO): If the child needs to be heard again during the trial, this is done in specially designed Judicial Interview Rooms instead of the courtroom.
- Evidential Value of the Victim’s Statement: Since such offences are usually committed in secret environments without witnesses, the statement of the child victim may be the most important and sometimes the only evidence in the case. According to the established jurisprudence of the Court of Cassation, sincere, consistent, in accordance with the ordinary course of life and without contradiction statements of the victim, even if there is no other evidence, may be considered sufficient for conviction when supported by expert reports (evaluating the psychological state).
- Compulsory Counsel and Attorneyship: Pursuant to the Criminal Procedure Code, children who are victims of sexual abuse offences are assigned a mandatory lawyer (attorney) by the Bar Association. Similarly, a defence counsel shall be appointed for the suspect/accused alleged to have committed the offence.
Difficulties of Proof and Legal Evaluation
The most challenging aspect of child abuse cases is the issue of proof.
- Insufficiency of Evidence: The passage of time since the incident may cause physical evidence (sperm, DNA, etc.) to be lost.
- Differences in the Child’s Narrative: There may be changes or contradictions in the child’s testimony over time due to reasons such as trauma, age, developmental level or orientation. Courts test the reliability of the statements by referring to expert reports when assessing this situation.
- “Good behaviour” and other reductions: Recent amendments to Article 103 of the TPC have made it more difficult to apply the “good behaviour” discount (Article 62 of the TPC) in these offences and made it almost impossible to apply the provisions on unjust provocation. The legislator has adopted a zero tolerance policy towards these offences.
Sexual abuse of children is the most sensitive and decisive area of law. The Turkish legal system aims to protect children through severe criminal sanctions in the Turkish Penal Code and specialised judicial procedures in the Code of Criminal Procedure and the Child Protection Law. In these cases, where the statement of the child victim plays a central role as evidence, it is essential for the administration of justice and the protection of the child’s mental health that the statement is taken in special environments and by experts. Combating these offences is not only a judicial task, but also a shared responsibility of the whole society.