The offence of sexual harassment is laid down in Article 105 of the Turkish Penal Code No. 5237. The legislature has not made physical contact with the victim a condition for the offence to arise; it has regarded it as sufficient that the person be disturbed for sexual purposes. As the natural consequence of that choice, directing expressions of a sexual nature at someone on social media platforms, or making proposals of that character, is sufficient for the offence to arise. Commission of the act over the internet and social media is moreover separately regulated in the Act as an aggravated form, and in that event the offence is not even made subject to a complaint.
Although social media and the internet give most users the impression of a broad and ordinary sphere of freedom, that appearance brings a number of problems with it. While certain exaggerated posts may be met with tolerance in that environment, some posts made without any intent or purpose of harassment may be assessed as falling within the scope of the offence. Considering each post within the conditions of the platform on which it is published, and establishing whether an intention to commit an offence is present, is of critical importance so that persons acting under the influence of the internet’s atmosphere of freedom do not suffer prejudice.
The embedding of the internet and mobile telephones in every sphere of life has inevitably transformed the manner in which certain offences are committed. Offences such as sexual harassment, which may be committed without any contact whatsoever, have today come to be carried out largely through social media applications.
Definition of the Offence of Sexual Harassment
Sexual harassment is regulated in Article 105 of the Turkish Penal Code No. 5237.
Turkish Penal Code No. 5237, Art. 105(1)
"(1) A person who harasses another for sexual purposes shall, upon the complaint of the victim, be sentenced to imprisonment from three months to two years or to a judicial fine, and, where the act is committed against a child, to imprisonment from six months to three years."
As will be seen, the Act does not require the perpetrator to make physical contact with the victim for the offence to arise; it regards it as sufficient that the victim be disturbed with a sexual purpose. These forms of conduct, characterised as the material element of the offence, are explained in detail below. For the offence to arise, however, the condition of "purpose", assessed within the scope of the mental element, must also be met alongside the material element.
The Material Element of the Offence
The material element of the offence covers the whole of the conduct directed at a person’s sexual inviolability which involves no bodily contact. Within this framework, acts capable of being regarded as harassment may be carried out by word, in writing, by gestures of the hand and arm, or by way of exhibitionism. With the spread of internet use, a marked rise has occurred in the incidence of this offence, which is committed without requiring contact. Directing writings of a sexual purpose at persons on social media platforms, or conveying proposals of that character, may be accepted as sufficient for the offence to arise.
The determining matter at this point is the purpose for which the post, comment or exchange of messages on social media was made. That subject, examined under the heading of the mental element of the offence, is addressed below.
The Mental Element of the Offence
In the offences regulated in the Turkish Penal Code, whether the act was committed intentionally or negligently is a determining question. This matter, examined under the heading of the mental element, differs with each type of offence. The offence of sexual harassment cannot be committed negligently; it can be committed only intentionally. Alongside intent, the statutory provision requires that a "sexual purpose" also be present for the offence to arise. It is therefore not sufficient on its own that conduct was engaged in knowingly and willingly; whether that conduct can constitute an offence depends on its being directed towards a sexual purpose. Acts that carry no sexual purpose do not constitute the offence, for want of the mental element.
Commission of the Offence via the Internet
In parallel with the spread of internet use, mobile messaging applications on telephones and online environments have become the settings in which the offence of sexual harassment is most frequently encountered.
The internet and social media applications, by virtue of the anonymity they afford, allow people to carry out far more easily a great many acts they could not perform face to face. This virtual environment, in which identity can be concealed, may lead individuals to display conduct they would not dare to engage in in real life; people may act without taking into account that what they do there may constitute an offence in real life. Bearing this picture in mind, the legislature has provided for a heavier penalty where the offence of sexual harassment is committed by means of the telephone or the internet.
The Turkish Penal Code has regulated the commission of the offence of sexual harassment over the internet as an aggravated form of the offence.
The Parties to the Offence
The Victim
The victim is the person who suffers harm from the offence and is exposed to its effects. In the offence of sexual harassment it makes no difference whether the victim is a woman or a man. Indeed, the offence may also be committed between two persons of the same sex. Sex is accordingly not a determining criterion as regards the victim.
The Perpetrator
The perpetrator is the person who carries out the acts necessary for the offence to arise, that is to say the person who commits it. The Act requires no special quality of the perpetrator of the offence of sexual harassment; anyone, woman or man, may be in the position of perpetrator of this offence.
Aggravated Forms
The second paragraph of Art. 105 of the Turkish Penal Code No. 5237, which regulates the offence of sexual harassment, lists, in addition to the basic form of the offence, the aggravated forms that increase the penalty.
Turkish Penal Code No. 5237, Art. 105(2)
a) by taking advantage of the convenience afforded by public office or by a service relationship or by a relationship within the family,
b) by a guardian, educator, instructor, carer, foster family or provider of health services, or by persons under an obligation of protection, care or supervision,
c) by taking advantage of the convenience afforded by working at the same workplace,
d) by taking advantage of the convenience afforded by postal or electronic communication means,
e) by way of exhibitionism,
where it is committed, the penalty to be imposed under the preceding paragraph shall be increased by one half. Where, on account of this act, the victim has been compelled to leave work or to leave school or his or her family, the penalty to be imposed may not be less than one year.
If one of these situations listed in the Act as an aggravated form is present on the facts of the case, the penalty determined for the basic form of the offence is increased by one half and imposed on the perpetrator accordingly.
Attempt
An attempt to commit an offence arises where the perpetrator begins the acts of execution directed at the commission of the offence but those acts cannot be completed for reasons beyond his or her control. In the offence of sexual harassment, attempt is possible only where the acts are capable of being divided. For example, where a letter of a sexual content has been written but cannot be delivered to its addressee for reasons outside the perpetrator’s volition, one speaks of an attempt to commit the offence of sexual harassment.
Concurrence of Offences
The rule in criminal law is that the perpetrator is punished separately for each offence committed; the institution of concurrence, by contrast, allows the perpetrator to receive a single penalty for more than one offence. As regards the offence of sexual harassment, the focus of the debate on concurrence is whether the act constitutes a "continuing offence". Where the offence is committed more than once against the same person and the other conditions are also present, the provisions on the continuing offence come into play.
Commission of the Offence More Than Once Against the Same Person
The offence of sexual harassment may be committed on a single occasion, but it may equally be committed more than once, repeated at particular intervals of time against the same person. In the second possibility, commission of the offence in continuing form is in question. A perpetrator who disturbs the victim by sending messages of a sexual content by telephone at particular intervals is a typical example of this situation.
For the perpetrator’s repeated acts to be capable of being regarded as a continuing offence, certain fundamental conditions must be met together. Those conditions are that the acts were carried out within the scope of a single decision to commit an offence, that all of them bear the character of sexual harassment, that they were committed at different times, and that they were directed at the same person.
Where all four of the conditions listed are present together, one speaks of a continuing offence. In that case a single penalty is imposed on the perpetrator and the penalty imposed is increased pursuant to the provisions on the continuing offence.
Commission of the Offence on a Single Occasion
For it to be accepted that the offence has been committed more than once, the perpetrator must have carried out the acts at different times. For this reason, the whole of the acts carried out within the same period of time and bearing the character of sexual harassment counts as a single offence; in such a situation the offence is accepted to have been committed once. For example, where the perpetrator has sent the victim messages of a sexual content one after another on the same day, no continuing offence can be spoken of; there is a single act of sexual harassment.
Statute of Limitations
The basic form regulated in Art. 105(1) of the Turkish Penal Code No. 5237 is subject to complaint. The victim must therefore report the act of sexual harassment to the competent authorities within 6 months.
Where, on the other hand, the offence is committed "by taking advantage of the convenience afforded by postal or electronic communication means", the aggravating element will have been made out, and the investigation and prosecution are not dependent on the condition of a complaint. This matter is emphasised in the reasoning of the article by the statement that "where the aggravating elements of the offence of sexual harassment are made out, the conduct of the investigation and prosecution is not subject to the complaint of the victim." An action may therefore be brought within the 8-year limitation period for prosecution. The trial is held before the Criminal Court of First Instance.
Investigation and Prosecution
Criminal procedure is divided into two separate stages, one conducted before the prosecutor’s office and the other before the court. Since sexual harassment is an offence subject to complaint, these stages can begin only upon the victim making a complaint to the prosecutor’s office. Even where the commission of the offence has been reported, the prosecutor does not act of his or her own motion.
The Investigation Stage
The authority that conducts the investigation stage is the prosecutor’s office. It acts upon the victim’s complaint; it seeks to establish whether the act complained of was committed and gathers the evidence together. Within this scope, a summons is issued by the public prosecutor, or by the police on his or her instruction, so that the suspect’s statement may be taken. Once all the other evidence has also been collected, the public prosecutor carries out an assessment; he or she may issue a decision of non-prosecution or, where sufficient suspicion is reached that the offence was committed, draw up an indictment. The investigation stage ends with the preparation of the indictment.
The Prosecution (Trial) Stage
The prosecution stage begins with the acceptance of the indictment prepared by the prosecutor’s office and continues until the judgment to be given by the court becomes final. At this stage the suspect alleged to have committed the offence of sexual harassment now acquires the capacity of accused and is tried before the criminal court.
As regards the other offences capable of being committed over the internet and social media, our studies entitled The Offence of Threat by Social Media and the Internet, The Offence of Insult by Social Media and the Internet, How Is a Complaint Made in Information Technology Offences? and The Right of Complaint and the Consequences of Withdrawing a Complaint may be consulted.
Independent Legal Assessment
In acts of sexual harassment committed in the digital environment, two headings stand out as determining the course of the dispute. The first is evidence: since message records, screenshots and account details can readily be deleted, having the content recorded in a manner that preserves its integrity before any application is made is of great importance. The second is characterisation; because the commission of the act by means of electronic communication removes the condition of a complaint, drawing that distinction correctly at the outset of the process produces serious procedural consequences.
Establishing the identity of the perpetrator is a further heading. In acts carried out through fake accounts, IP records and platform data can be obtained only through the investigating authorities. It is therefore appropriate for the complaint petition to be structured so as also to set out the investigative measures requested.
We recommend that the following matters be observed on the facts of a given case:
- Evidencing messages, images and posts without delay and in a manner that preserves the integrity of the content
- Determining whether the act falls within the basic form or within the aggravated form tied to electronic communication means
- Monitoring the six-month period where the offence is subject to complaint, and otherwise the eight-year limitation period for prosecution
- Analysing, on the basis of the intervals of time, whether the conduct constitutes a single act or a continuing offence
- Expressly raising in the petition the requests for investigation into IP and subscription records in cases where a fake account has been used
- Setting out the context of the post and the integrity of the exchange where the defence is that the element of sexual purpose is absent
Independent Legal provides legal advice and litigation services throughout the entire process in disputes concerning offences committed in the information technology environment, from the recording of evidence to the preparation of the complaint application and the conduct of the trial.