ci̇nsel dokunulmazliğa karşi suçlar

Transkript

CRIMES AGAINST SEXUAL INVIOLABILITY
Tuğçe ALTUĞ
Introduction
Within the systematic of the Turkish Penal Code, crimes against sexual freedom 1 are
covered within the "Offences Against Individuals" titled Second Chapter of the Second Book
of the Turkish Penal Code. While carnal abuse (art. 415, 416), rape (art. 414, 416) and
molestation (421/c.2)2 had been regularized as substantive types of felonies in the Old Turkish
Penal Code, with the new regulation the crimes against sexual inviolability have been
regularized under four main types of crimes as sexual assault (art. 102), sexual abuse of
children (art. 103), sexual intercourse with minors (art. 104) and sexual abuse (art. 105).
CRIME OF SEXUAL ASSAULT
(TPC 102)
It is the "acts that violates individual's bodily inviolability through sexual behaviors" that
constitute the basic form of the sexual assault crime and these are regulated in the 102/1
article of the TPC. The second paragraph of the 102nd article covers major form of the crime
where "the act is committed by means of inserting an organ or other object into the body".
While other forms of the crime that require a heavier penalty are listed in the 3rd paragraph,
the 5th and 6th paragraphs includes heavier cases due to the consequence of the committed
crime. A special provision is available in the 4th paragraph, for the joiners of the crime.
§1. LEGAL VALUE AIMED TO BE PROTECTED FROM THIS CRIME
The value which is aimed to be protected from the sexual assault crime in the 102nd article
of the TPC is the sexual inviolability of the individuals, as it is indicated in the preamble of
the article. In the preamble of the article it is stated that "Sexual inviolability is violated by
committing sexual behaviors on the individuals' bodies. The common legal value protected
against the crimes included in this article is the sexual inviolability of individuals". This
regulation is improper and misguiding, and this crime should not be mistaken for assault and
battery (injury)3. The legal value protected from crimes of assault and battery is the bodily
integrity of the individuals. By means of the "...crimes included in this article..." expression
within the preamble, it has been indicated that the legal interest protected also in terms of
other crimes is sexual inviolability. The contradiction here stems from imposing sanction to
1
See Soyaslan, Doğan, Ceza Hukuku Özel Hükümler, 6th Edition, Ankara 2006, p.169,170
2
Yıldız, Ali Kemal, 5237 Sayılı Türk Ceza Kanunu, 1st Edition, İstanbul 2007, s. 211,212
Ünver, Yener, Ünver, Yener, “Cinsel Dokunulmazlığa ve Genel Ahlâka Karşı Suçlar”, Türk Ceza Kanununun
2. Yılı, İstanbul 2008, p. 295,296
3
2
the sexual acts that does not violate the sexual inviolability of the victim, since there is no
physical contact in the crime of sexual abuse4.
§2. ELEMENTS OF THE CRIME
A. OFFENDER
Sexual assault is not a peculiar offence and thus, it can be committed by anyone. Offender
may be either man or woman. Age of the offender does not affect the offence 5. The offender
and the victim may be of different genders or of the same gender6.
In the period of the abolished law, it was questionable whether a non-consensual sexual
intercourse between spouses constituted an offence of rape. According to the authors who
assert that the offence of rape can not be committed towards spouses, the act did not constitute
an offence of rape even if the victimized spouse does not give consent, since "marriage"
legitimized sexual intercourse between spouses. On the other hand, some of those who
promoted this opinion agreed that an offence of rape would be present in case the sexual
intercourse was carried out in an abnormal way, while others asserted that such a case
constituted an offence of "ill-treatment of family members7". The opposing view asserted that
since the law did not regard whether the act was committed intra-or extra-maritally, having
non-consensual sexual intercourse with the spouse constituted an offence of rape, regardless
of whether it was committed normally or abnormally8. Supreme Court accepted that, even in
the presence of the conditions of bodily harm, such an act would constitute an offence of "illtreatment9.
The regulation in TPC stipulates beyond any doubt that an offence of sexual crime can be
committed between spouses (either towards husband or wife). By the nature and the legal
attribution of the offence, spouse can be the victim of this offence10. Since the legal interest
protected from the crime is the sexual freedom of individuals, the point that whether the
Ünver, Yener, “Cinsel Dokunulmazlığa ve Genel Ahlâka Karşı Suçlar”, Türk Ceza Kanununun 2. Yılı,
İstanbul 2008, p. 296
4
Özbek-Doğan-Kanbur-Bacaksız-Tepe, Türk Ceza Hukuku Özel Hükümler, 1st Edition, Ankara 2010, p.362;
Supreme Court 5th CD 31.10.2001., E.2000/8539, K.2001/6412 (YKD 2002, n.5, s.803-805)
5
6
Artuk-Gökcen-Yenidünya, Ceza Hukuku Özel Hükümler, 9th Edition, Ankara 2008, p.211
7
See 4. CD.25.3.2002, E.2002/1885, K.2002/4620 (www.kazanci.com.tr)
8
Tezcan-Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.286
9
Artuk-Gökcen-Yenidünya, Türk Ceza Kanunu Şerhi, Özel Hükümler, C.:III, Ankara 2009, m.102, s.2528
İstanbul 2008, p.297
10
3
victim is the spouse of the offender does not affect the offence11. In case that the act is
committed by more than one person, one of the accomplices has to be the spouse of the
victim12. In cases where the act is committed against the spouse of the offender, initiating
investigation and prosecution related with the offence is subject to the complaint of the
victimized spouse (TPC 102/2).
B. VICTIM
Anyone can be the victim of an offence of sexual assault. Gender of the victim does not
matter; it can be either man or woman13.
Age of the victim is important in terms of the offence of sexual assault. The victim has to
be at least 18 years old for the 102nd article of the TPC to apply. In case the victim of the act
is younger than 18, and if the other conditions are met, the provisions of the 103rd article of
"sexual abuse of children" applies.
The victim of the offence has to be a living person. In case that the act constituting the
offence is committed against animals, violation of the 14th article of the "Code of Protecting
the Animals", which regulates the prohibitions pertaining to the animals, will be in question14.
In case that these acts are committed to a deceased person, an offence of "Violation of
Respect to the Deceased" regulated in the 2nd paragraph of the 130th article of the TPC is
constituted15.
C. MATERIAL ELEMENT OF CRIME
The act of "violating an individual's body inviolability through sexual acts" constitutes the
material element of the crime. The point clarifying which sorts of acts constitutes a sexual act
is not included within the text of the law but in the preamble of it as follows: "Sexual acts
committed on the body of the individual intended for satisfying sexual desires but not
reaching the extend of being sexual intercourse..." As indicated in the preamble and asserted
in the doctrine, the sexual acts committed by the offender should be "intended for satisfying
sexual desires", but the actual satisfaction of such desires is not necessarily sought. This
special intent mentioned in the preamble is not included within the text of the article. In this
11
Soyaslan, Doğan, Ceza Hukuku Özel Hükümler, 6th Edition, Ankara 2006, p. 171
İstanbul 2008, p.297
12
13
See TPC Preamble
Özbek-Doğan-Kanbur-Bacaksız-Tepe, Türk Ceza Hukuku Özel Hükümler, 1st Edition, Ankara 2010, p.
363; Tezcan-Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.288
14
15
Soyaslan, Doğan, Ceza Hukuku Özel Hükümler, 6th Edition, Ankara 2006, p.172
4
respect the opinion, which we agree with, indicates that the scope of the article can not be
extended with the preamble and therefore the offence can be committed with a general
intention in terms of the moral element of the crime16.
The major form of the offence, which requires heavier punishment, is regulated in the 2nd
paragraph of the 102nd article of the TPC. The kind of act that will make the sexual act
constitute this offence is "insertion of an organ or other object into the body". In the preamble
of the article it has been stated that the act can be done in vaginal, anal or oral way. On the
other hand, in the text of the article the part of the body, to which the act is made, is not
indicated, as there is also no indication of any special intent. Therefore, the authors have
criticized the point that, the sole use of the term "body" is against the principle of clarity and
definiteness, and the difference between the offence of sexual assault and the offence of
bodily harm cannot be understood, since the article does not specify the way with which the
offence is committed17. Despite the fact that it is not mentioned in the doctrine, text and the
preamble, it is stated that in order the committed act to constitute a sexual assault, the act has
to be objectively of a "sexual nature"18 and the offender does not have to intent for satisfying
its sexual desires. Since the phrases "organ" or "other object" are used in the article, no
difference is regarded between inserting sexual organ, finger or any solid or liquid object19
into the body of the victim for the act to constitute the offence.
Coercion is the material force used in order to break the will of the victim. The physical
force applied to the victim has to be such as to break the resistance of the victim20. Threat, is
the moral kind force used in the form of informing the victim regarding a malice to be done in
the future in order to stop the victim from resisting the act. Threat can be towards the life,
bodily integrity, wealth or the reputation of the victim (TPK art. 106). It is not necessarily
required that the threat is directed towards the victim, it can also be directed to someone the
victim feels sympathy to21. Supreme Court has not accepted the offender's act of indicating to
a woman, whom was seen during having sexual intercourse, that her family will be told about
the intercourse if the woman does not have intercourse also with the offender, as a threat 22. In
case the offence is committed by means of any kind of deception intended to break the
For detailed explanation see Yıldız, Ali Kemal, 5237 Sayılı Türk Ceza Kanunu, 1st Edition, İstanbul 2007, s.
213,214; Ünver, Yener, “Cinsel Dokunulmazlığa ve Genel Ahlâka Karşı Suçlar”, Türk Ceza Kanununun 2.
Yılı, İstanbul 2008, p. 299,300
16
See Ünver, Yener, “Cinsel Dokunulmazlığa ve Genel Ahlâka Karşı Suçlar”, Türk Ceza Kanununun 2. Yılı,
İstanbul 2008, p. 299
17
18
19
Artuk-Gökcen-Yenidünya, Ceza Hukuku Özel Hükümler, 9th Edition, Ankara 2008, p. 212
For more information see Malkoç, İsmail, Yeni Türk Ceza Kanununda Cinsel Saldırı Suçları, 1st Edition,
Ankara 2005, p. 73,74
20
21
22
Supreme Court. 5th CD 16.2.1983 153/488, Journal of Supreme Court Decisions, May 1983, p. 772
5
resistance of the victim, deceit is in question as the instrument act. The offender deceits the
victim and makes him or her incapable of showing resistance. The acts where the offender
"personates itself as a doctor and seems to be medically examining the victim, mixing drugs
with the drink of the victim, puts the victim to sleep by means of drugs or hypnotizes the
victim”23 can be given as examples to the commitment of the offence by means of deceit.
D. MORAL ELEMENT OF CRIME
The offence of sexual assault is a crime that can be committed intentionally; it is possible
to also be committed with eventual intent.24 In the text of the law no special intention has
been sought regarding the basic or major form of the offence. However, in the preamble an
additional moral element as the offender's intention to satisfy its sexual desires in terms of the
basic sexual assault is included (TPC art. 102/1). In our opinion this regulation is improper.
Preamble is not included in the text and the forms indicated in the preamble can not be added
to the text as the element of the crime25.
E. ILLEGALITY ELEMENT OF THE CRIME
According to Article 26/2 of Turkish Penal Code. “No one shall be penalized due to an act
performed upon the consent of the victim regarding the rights which are within his full
disposal.” Victim consent is a defense to the crime. Element of the offense signifies that it
must occur without the consent of the victim. A sexual offense does not occur when a
perpetrator commits a sexual act with consent of the victim26.
F. CIRCUMSTANCES AFFECTING PUNISHMENT
a. Commitment of the Act to an Individual Incapable of Mentally or Bodily Defending
Itself (art. 102/3-a).
At this point there is an element in question sought in terms of the victim. The
circumstances of "being in capable of mentally or bodily defending itself" in which the victim
is in has to be such as to prevent the victim to resist the offence. If these circumstances are
permanent or temporary is not regarded, what matters is whether these circumstances were
23
372; Tezcan-Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.298
24
İstanbul 2008, p. 299,300; Tezcan-Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara
2008, p.299
25
Malkoç, İsmail, Yeni Türk Ceza Kanununda Cinsel Saldırı Suçları, 1st Edition, Ankara 2005, p.26,46,49;
Toroslu, Nevzat, Ceza Hukuku Özel Kısım, 3rd Edition, Ankara 2008, p.60; Artuk-Gökcen-Yenidünya, Ceza
Hukuku Özel Hükümler, 9th Edition, Ankara 2008, p. 205
26
6
present while the offence was committed. Whether or nor the victim has any fault in the
dismissal of its possibility to defend itself does not prevent the implementation of the major
form of the offence27. For instance, in case where a sexual assault is committed to a victim,
who drank alcohol to the extend that its resistance to the act is affected, shall still require the
application of the major form of the crime.
In case where the victim does not have the means to physically resist the offence, which
the victim knows as being an immoral act, the victim is deemed to be "incapable of bodily
defending itself". Being paralytic, being very weak bodily due to internal diseases28 and
being handicapped to the extent of being unable to defend itself can be given as examples of
such cases.
b. Commitment of the Offence by Means of Misusing the Influence Derived From a
Position in Public Office or a Private Working Relationship (art.102/3-b)
Since it will be easier to break the resistance of the victim by means of misusing the
influence derived from a position in public office or a private working relationship, such a
major form has been acknowledged.29 In case there is no authoritative relation or a relation
that provides superiority between the offender and the victim, such major form of the crime
will not be constituted30.
c. Commitment of the Offence Against a Person Relative by Marriage or a Person of
Blood Relationship of First, Second or Third Degree (art. 102/3-c)
Presence of a kinship of the indicated degrees between the offender and the victim has
been acknowledged as an aggravating major element, since such a relation may also make it
difficult for the victim to resist the offence. Blood kinship shall be determined as per the
provisions of the Turkish Civil Code.
d. Commitment of the Offence by Using Weapons or Together With the Cooperation of
Others (art. 102/3-d)
Since commitment of the offence by means of using weapons or in cooperation of others
will encourage the offender and intimidate the victim it will make it easier to commit the
offence.
a) Commitment of the offence by using weapons: The definition of the concept of
"weapon" is included in the 6th article of the TPC.
27
28
29
Toroslu, Nevzat, Ceza Hukuku Özel Kısım, 3rd Edition, Ankara 2008, p.62
370
30
7
TCK (art. 6/1-f) : "In the implementation of penal laws; f) the term Weapon
shall mean: 1. Fire Arms, 2. Explosives, 3. Any kind of cutter, penetrative or
bruiser tools made to be used for assault or defense, 4. Other tools that are
capable to be used in assault or defense even though they are made for those
purposes, 5. Nuclear, radioactive, chemical and biological material which are of
igniter, corrosive, scathing, suffocating and intoxicating nature and which may
cause permanent diseases." The weapon is not necessarily required to be used
during the commitment of the offence for the major form of the offence to be
constituted; it may be used as an element of coercion or threat 31. Also the use of
blank cartridge firearms and toy guns that are very similar to actual weapons shall
constitute the major element in case they are used in a way that will hinder the will
of the victim to resist the offence32.
b) Commitment of the offence together with the cooperation of more than one
person:
With the commitment of the offence by more than one person, it is easier to break
the victim's psychological and physical resistance to the offence. In the legal
definition of the crime, more than one person have to commit the offence
"together". Therefore, in cases of accompliceship with the attribute of being
abettor or aider, the major form of crime in question shall not apply33.
G. THE CASES THAT REQUIRE THE AGGRAVATION OF CRIME DUE TO THE
CONSEQUENCE OF THE COMMITTED CRIME
In case of aggravated crime, due to its consequence, the offender should have not want
the occurred situation’s result; but in respect of result, should have a fault at least in degree of
negligence (TPC 23/1). In such cases, the penalty amount that will be given to the offender is
arranged in a heavier degree.
a. The deterioration of mood and body health of the victim
After the realization of sexual assault act, some physical and mental disorders may occur.
The legislator has considered the result as aggravated state as of its outcome, and has arranged
the amount of the prescribed penalty as imprisonment not less than 10 years. In order to
Tezcan-Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.309; Toroslu,
Nevzat, Ceza Hukuku Özel Kısım, 3rd Edition, Ankara 2008, p.62
31
32
Soyaslan, Doğan, Ceza Hukuku Özel Hükümler, 6th Edition, Ankara 2006, p. 178; Tezcan-Erdem-Önok,
Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.310; Artuk-Gökcen-Yenidünya, Ceza
Hukuku Özel Hükümler, 9th Edition, Ankara 2008, p. 225
33
8
practice this qualified state, there should be the causality between deterioration occurred in
the victim and the act of sexual assault of the offender. As there have been natural results such
as bruise and simple abrasions during the process of acting sexual assault, it is not taken into
the coverage of the article34.
The remaining of the crime at the stage of attempt is a restraint for applying the provision
of article. As there is the subject of result as aggravated state as of its outcome; in order to
consider the offender as the responsible for this state, he/she should have fault in degree of
least negligent crime35, and according to the approval of Supreme Court, at least, there should
be the completion of the basic state of the crime36.
The issue criticized in the doctrine is that the acts of sexual assault will create
psychological trauma on the victim as a natural result, and the victim will be affected, and it is
considered as meaningless that the legislator dismiss this situation and arrange it as the
qualified state37.
In article text, no any aspect is expected that the deterioration of mood of victim should
be “constant”. And the point which is defended in the doctrine is that the mental disorder on
the person, who was exposed to the act, should be in the permanent nature. In the forensic
medicine practice; in spite of not showing any improvement of the treatment, which is applied
between 2 and 6 months, for the mental disorders of the victim, then the existence of the
permanent mental disorder is accepted38.
b. The Crime’s Result of Leading the Death or Falling into a Vegetative State of the
Victim
Here is again an aggravated crime is the subject as of its result. The penalty provided by
the law is aggravated life imprisonment. There should be a “direct” casual connection
between the occurred result and sexual assault. As there is indirect casual connection, in the
instance of victim’s committing suicide after the sexual assault, it is not enough39.
The offender should be faulty at least in degree of negligence as of the result. If the
offender has desired the death result, the offender will also be punished of the crime of willful
34
35
36
İstanbul 2008, p.302; Artuk-Gökcen-Yenidünya, Ceza Hukuku Özel Hükümler, 9th Edition, Ankara 2008,
p.228
37
38
39
9
murder, besides the crime of sexual assault40. Also, the opinion of the Supreme Court is on
this direction41.
§3. THE SPECIAL ASPECTS OF THE CRIME
A. ATTEMPT
The crime is completed when the act is occurred which constitute the sexual assault. In
case the offender has directly begin the act with the proper actions, and then could not reach
the result, through the reasons out of his reach; there will be mentioned of the attempt.
There is divergence, in the doctrine, on the attempt for practicing the sexual assault by
inserting the organ or such material into the body, that it is possible or not to do so. According
to the opinion, which accepts the Article 102/2 of TPC as the qualified state of 102/1 that
require more punishment, in case the failure of performance of qualified state, through any
reason, there will be no mention of the attempt, and the offender will be punished by the basic
state of the crime42. There is another view, which we are agreed on, is to accept that the
independent description of the crime is done in the Article 102/2 of TPC, so that the
provisions of attempt will be also applied to this crime43. The practices of Supreme Court are
also in the direction that the attempt for both basic sexual assault and the qualified sexual
assault crime are possible.
If he/she impeded the completion of the crime or the performance of result with her/his
own effort after stated the executed acts of sexual assault crime, then the provisions of
voluntarily renunciation44 will be applied. For this reason, the offender will not be punished
due to the crime that she/he has quitted; but if the acts, performed until that moment,
constitute another crime then the offender will only be punished of that crime. Again, by
basing the acceptance of that TPC 102/2 is an independent crime, the offender will be
punished of the basic state of the crime in case the voluntarily renunciation, in respect of
102/245.
B. CONSEIL
40
41
Supreme Court CGK 14.1.1985 1-491/8, YKD September 1985, s.1519
42
43
44
Supreme Court. 5th CD 23.6.2004 5709/5150; CGK. 24.5.2005., E.2005/5-34, K.2005/54
(www.kazanci.com.tr)
45
Tezcan-Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.300,301
10
In case the offender chooses coercion and threat as the instrument acts in order to perform
the sexual assault crime, the offender will not be accused of the crimes of “coercion” (art.
108) or “threat” (art. 106). In case of using coercion in the nature that exceeds this measure,
as it was depicted in TPC 102/4, the actual conseil rules will be applied, and the offender will
also be punished of the crime of willful injury.
If the offender also violate the inviolability of domicile of the victim while she/he commit
the crime of sexual assault, then the offender will be punished of the crime of “violation of the
inviolability of domicile”46, and if she/he restrict the freedom of victim besides this crime then
the offender will be punished of the crime of “deprivation of freedom”47.
C. PRIVITY
The general provisions on privity will be applied in respect of sexual assault crime.
Therefore, the privity for the crime in all ways is also possible.
Conclusion
When we consider the regulations which Turkish Penal Code numbered 5237 has brought
forth in terms of both general and sexual assault, we can state that the law incorporates several
faulty and imprecise regulations together with less favourable regulation.
It is a constructive step in terms of superseding offense victim from society to the
individual to categorize offenses against sexual inviolability under “Offenses Against
Individuals” by removing it from “Offenses Against General Moral Principles and Family
Order”.
It has been emphasized in the continuation of article regulating major offense of sexual
assault in the new law that offense may be committed against the spouse; however, it is
obligated to the complaint. Since this offense is an offense which may be committed against
everyone, it is natural to be committed against a spouse and regulation is impertinent in this
respect. In addition to this, it may be inferred that a misleading interpretation may be
extracted such that simple case of offense is not to be committed against spouse in terms of
regulation in the text.48.
46
İstanbul 2008,p. 298; Artuk-Gökcen-Yenidünya, Ceza Hukuku Özel Hükümler, 9th Edition, Ankara 2008,
p.234
47
Yıldız, Ali Kemal, 5237 Sayılı Türk Ceza Kanunu, 1st Edition, İstanbul 2007, s.213; Ünver, Yener, “Cinsel
Dokunulmazlığa ve Genel Ahlâka Karşı Suçlar”, Türk Ceza Kanununun 2. Yılı, İstanbul 2008,p. 298¸ Tezcan48
11
We are opined that fidelity liabilities of spouses have been focused in article justification
and “medical and judicial” framework whose limits are abstract and obscure has been
designated to this case. In this regard, behaviours which are forcible sexual assault nature
against spouse in a manner which shall not exceed abstract limits are congeable and
unfavourable interpretation may be inferred from sentence above and it collapses
implementation of article.49. Since justification does not incorporate any bindingness, text of
article is not to be interpreted in such manner.
The most remarkable conflict in the regulation is that, whereas, there exist no special
deliberation in article text in terms of moral elements, it is investigated in the justification that
sexual behaviours of offender are intended for “satisfaction of sexual desires”. Justification is
not incorporated in law text; law may not be interpreted with text justification. That
behaviours of offender in simple sexual assault offense are in “sexual” nature is sufficient for
constitution of an offense. In other words, offense in an offense which may be committed with
general deliberation. However, regulating special deliberation in material text in terms of
major case is faulty and it may incur that the offense may result in confusion with other
offense types such as assault and battery50.
It is inevitable fact for victim to have deteriorated mood as a result of sexual assault.
However, “deterioration of mood” of victim has been regulated as an aggravating cause in the
law and extent of such deterioration and its permanency and continuity have not been
mentioned hereunder. Thus, such major case shall be applied in temporary mood
deteriorations51. While “Result of demise of victim or his/her lapsing into vegetative state” as
another aggravating cause is being regulated, that it is not incorporated into critical life; while
relationship of blood and marriage affinity between offender and victim likewise is being
regulated, that relationship of filial or step father/mother is not regulated has been focused as
deficiency by authors52.
It has been resolved that, on the other hand, there is no net indication in the law in respect
with whether pursuit of offense is obligated for major cases set out in 102/3. In addition to
this, that pursuit of offense in major nature committed against spouse and basis form in the
Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.287; For the opposite view see
Malkoç, İsmail, Yeni Türk Ceza Kanununda Cinsel Saldırı Suçları, 1st Edition, Ankara 2005, p. 27,28
49
50
Yıldız, Ali Kemal, 5237 Sayılı Türk Ceza Kanunu, 1st Edition, İstanbul 2007, s.213, 214
Tezcan-Erdem-Önok, Teorik ve Pratik Ceza Özel Hukuku, 6th Edition, Ankara 2008, p.312; bkz. Ünver,
Yener, “Cinsel Dokunulmazlığa ve Genel Ahlâka Karşı Suçlar”, Türk Ceza Kanununun 2. Yılı, İstanbul 2008,
p.302
51
İstanbul 2008,p.302
52
12
decision of Court of Appeal CGK is obligated to complaint shall not affect other major cases
and such cases shall be prosecuted ex officio53.
That the matters not specified in law text exist in reality and moreover it is in
contradiction with article text is the most remarkable defect. In addition to this, “obscurity”
and “confusion” prevail in terms of concepts. For instance, what should be conferred by
concepts of “sexual behaviour” and “body” has not been specified in the law and it has been
regulated in contradiction with transparency principle. In this sense, a lot of deficiencies
should be satisfied in text and content regulation.
53
Özbek-Doğan-Kanbur-Bacaksız-Tepe, Türk Ceza Hukuku Özel Hükümler, 1st Edition, Ankara 2010, p.376

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