The Draft which provides amendment of articles of TPC regulating sex crimes is regulated again within scope of “omnibus bill” which the government adopts as a routine practice for all significant legal regulations. “Omnibus bill” practice is a lawmaking technique that does not allow integrative evaluation of a law which has “main code” quality such as TPC. Despite being undue, this lawmaking technique is an approach that fails to be in concordance with the severity, intensity and significance of sex crimes committed against women and children. Also, the Draft, in its current form, is away from being in integrity and systematic. The government regulates various subjects which are not interrelated altogether to avoid duly discussion of these subjects and applies a method to “whip out” some regulations which could be regarded unfavorable by the public together with other “favorable” regulations which they consider not to be objected by anyone. Therefore, we object to such lawmaking technique that does not comply with the scope and dimensions of the regulations on sexual violence crimes committed against women and children and their significance and severity; we request preparation of a separate and collective TPC that is concordant and interrelated with the entire TPC to include violence against women, children and LGBTIs with the cooperative studies to be carried out with respective non-governmental organizations and institutions.
Hence, enactment of the articles concerning sex crimes on the agenda of General Assembly of TNGA. Considering that people mainly exposed to sexual violence crimes are mainly women, children and LGBTI individuals, it would be essential that such crimes are dealt from a specific perspective and required regulations are made according to such perspective. Means of application which do not expose the victims of crime to secondary damnification shall be created and regulations which take statement of the victims as basis shall be made for effective investigation and prosecution of the crime.
BASIC ASPECTS
The Draft which provides amendment of articles of TPC regulating sex crimes is regulated again within scope of “omnibus bill” which the government adopts as a routine practice for all significant legal regulations. “Omnibus bill” practice is a lawmaking technique that does not allow integrative evaluation of a law which has “main code” quality such as TPC. Despite being undue, this lawmaking technique is an approach that fails to be in concordance with the severity, intensity and significance of sex crimes committed against women and children. Also, the Draft, in its current form, is away from being in integrity and systematic. The government regulates various subjects which are not interrelated altogether to avoid duly discussion of these subjects and applies a method to “whip out” some regulations which could be regarded unfavorable by the public together with other “favorable” regulations which they consider not to be objected by anyone. Therefore, we object to such lawmaking technique that does not comply with the scope and dimensions of the regulations on sexual violence crimes committed against women and children and their significance and severity; we request preparation of a separate and collective TPC that is concordant and interrelated with the entire TPC to include violence against women, children and LGBTIs with the cooperative studies to be carried out with respective non-governmental organizations and institutions.
Hence, enactment of the articles concerning sex crimes on the agenda of General Assembly of TNGA. Considering that people mainly exposed to sexual violence crimes are mainly women, children and LGBTI individuals, it would be essential that such crimes are dealt from a specific perspective and required regulations are made according to such perspective. Means of application which do not expose the victims of crime to secondary damnification shall be created and regulations which take statement of the victims as basis shall be made for effective investigation and prosecution of the crime.
It is intriguing that Turkey, as a country that is the first signatory (May 11th, 2011) of Convention on Preventing and Combating Violence Against Women and Domestic Violence of Council of European Council’s Cabinet dated April 7th, 2011 as ratified by the parliament on October 24th, 2011 before other countries, being the first country to submit the ratification certificate to the Secretariat of European Council on March 14th, 2012 upon publishing it on the Official Gazette on March 8th, 2012 International Women’s Day, has forgotten the requirements of this convention during TPC amendments. Opened to signature by European Council in İstanbul (not only to European Council states but any state throughout the world), this Convention is also referred to as “İstanbul Convention”.
İstanbul Convention was established on the idea that “Recognising that violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men and to the prevention of the full advancement of women” and assigns the task of eliminating such inequality to all of the states. The convention sets forth an obligation for all states to establish a comprehensive legal framework within scope of elimination of violence against women to create a Europe (and a world) that violence against women and domestic violence is eliminated. Therefore task of concentrating on subjects of prevention, protection, prosecution and policies for establishing victim support mechanisms is assigned. There is no trace of this approach which is stipulated by İstanbul Convention in TPC amendment draft on the agenda of TNGA (in this field too even if the subject is only the sex crimes against women and children). It is seen that the Draft does not even come closer to the obligations set forth in the convention, does not contain protective-preventive-supportive aspects and is not integrative and systematic.
One of the most significant failures that this Draft suffers is the misperception that the deterrence will increase together with the increased penalties and crimes will be prevented accordingly. Based on our experiences, we know that investigation and prosecution authorities always have a tendency to safeguard the offender in sexual violence crimes. Lawsuits which are filed by chance upon investigations that are carried out reluctantly then turn into lawsuits where the victim is judged; words and acts which are considered to demonstrate the consent of the victim are sought after and reluctance in the investigation and judgment is then experienced again in sentencing. Although it is not possible to reach reliable statistics on this subject (hence, this is an indicator that the state adopts a reluctant approach to such crimes), it is a known fact by all professionals of law working in this field that sexual violence crime indictments or lawsuits mostly dismissed or exculpation. Action of the adjudicators who do not abstain from imposing sentences of tens of years relying on the statement of a single plaintiff in robbery and crimes which are committed against property; by considering the possibility that the victim may be in deceit causes the defendants are not imposed with any sentence. Under these circumstances, increase of the penalties would not provide an outcome in favor of the victims but would reinforce the will of the sexist mechanism which does not want to sentence the men to not to impose a penalty.
On the other hand, penalties which are more severe than the required would cause an outcome that families, witnesses and other respective parties attempt to save the defendants and to keep the incident confidential/unpunished in terms of filing claims, notifications on the
crimes and sentencing sexual and other violence types particularly committed in the family.
Increasing the penalties due to such and similar reasons bring together impunity in most cases. A great leap forward will be achieved in terms of eliminating sex crimes in the case that the current law is exercised accordingly by law enforcement units, prosecutors and adjudicators who abstain from sexist attitudes.
CONCRETE IDEAS ON THE ARTICLES OF THE DRAFT
Article 42 of the Draft
Provides an amendment to article 102 of TPC. One of the most important changes assumed in addition to aggravation of penalties is the introduction of the concept of “sudden act” for sexual assault crimes. This new concept which is introduced in the place of “groping” which was in TPC before 2005 is a concept which would give rise to legal arguments and problems in practice. For instance, arguments will be encountered to determine whether 2-7 year penalty and 5-10 year penalty will be imposed in case which part of the body is assaulted by hand, how many times and for how long.
Also, as another amendment in article 102 the provision contained in clause 5 of the article “In case of deterioration of corporal and spiritual health of the victim as a result of the offense, the offender is sentenced to imprisonment not less than ten years.” is abolished. One of the reasons of this amendment is the increase of penalties with the new Draft. Another reason for such amendment is the claim that the victim experiences repeated damnification due to repeated visits to concerned authorities (institutions of Forensic Medicine) and the requirement to explain the incident multiple times in order to diagnose the physical and spiritual health of the victims and such procedures would consume time.
Above all, it is not understandable for the government to abolish a provision of an article due to institutions which do not function as required. What is expected from the government is to have current institutions function as required. Pursuant to the obligations arising from being a party to İstanbul Convention, it is required to enforce regulations against sex crimes and that are protective and supporting for the victims and to establish sufficient number of “sexual violence crisis centers”. The government is obliged to reinforce such institutions and increase their number pursuant to the international conventions that Turkey is a party to, in addition to rendering the current institutions functional. Also, measures such as hearing for once, recording the made statement at once are a requirement of Code of Criminal Procedures currently in force to prevent secondary damnification of the women and children victims during the course of adjudication. 9
Therefore, the way of resolving the problems experienced by the victims of this crime in practice is to ensure that all accountable institutions function as required and exercise the laws as required. On the other hand, the article which is planned to be abolished allows observing physical and spiritual effects of the crime on the women and children victims and carrying out required medical diagnosis and treatments. With the annulment of the article a regulation which eliminates the possibility of “attributing a legal value to the statement of women” which is generally omitted in the adjudication processes and allowing identification of such in forensic psychiatry processes and also leads to ignorance of spiritual and physical effects caused by the crime will be enacted. Annulment of this regulation also refers to an attitude which does not consider any difference between perpetration types of the crime. It is clear that there is a significant difference between perpetration of the crime in a manner to include only obligatory aspects regulated by the law and committing the crime in a way that physical integrity of the victim is impaired, an injury which required long-term treatment is inflicted, a contagious disease is caught and such difference would be made certain with the report issued by authorized health institution. Solely increasing the penalty without observing all of these aspects is not a way to ensure justice. It shall be remembered that the impact of the crime on the victim is more intense and long-term and has a lifetime effect due to the nature of sexual violence crimes. While any act exercised against the consent of a person would give rise to a traumatic outcome is accepted in advance, it is not possible to say that e.g. rape and robbery crime causes the same effects on the victim. In order to be able to diagnose such effects, it is essential that spiritual and physical examination of the victim is carried out and concerned authorities provide report on this aspect and such reports are employed through the adjudication processes.
Also, within scope of the provisions of article 102, annulment of the regulation concerning physical and spiritual health examination of the victim is not in concordance with the other clauses of the same article. Hence, within scope of clause 4 of article 102, in order to impose a penalty for willful injury crime, the victim of the crime would be required to be subject to physical examination. Cancellation of examination would give rise to doubts on the examination which would be carried out in practice to gather evidences for both the sexual assault and infliction of injury.
A worse amendment is being carried out in article 102 of TPN (clause 4). The current law imposes a separate penalty for willful injury in the case that force and violence in excess of the level to break the resistance of victim during sexual assault. With this regulation, an additional penalty (in addition to the penalty of the sexual assualt) is currently imposed for both felonious (TPC article 86) and heavy (TPC article 87) injury crimes due to the force and violence used in the sexual assault. However, in the Draft it is set forth that force and violence exercised in the sexual assault may only be penalized if “willful injury crime causes heavy injury” (in order words, only pursuant to article 87 of TPC). This regulation falls even behind the current TPC. Likewise, while use of force and violence is sufficient to impose a penalty for willful injury crime within scope of TPC in force, the Draft considers such condition as that the willful injury caused by the applied force and violence gives rise to heavy outcomes (chronic deficiency in physical senses or organs, permanent scar on the face, vital risk etc.). With such amendment, it will not be possible to impose a penalty for willful injury (TPC article 86) in practice if force and violence in excess of the level to break the resistance.
However, instead of the amendment in the Draft, by considering the nature of the sexual assault crime, a regulation which requires imposing of penalty also for offences of willful injury or threatening according to the realization manner of the crime in the case that force, violence and threat is employed beyond the level to break physical or psychological resistance of the victim, shall be enacted. Thus, ongoing arguments on “consent” concerning sexual assault and sexual abuse of children would be clarified and the existing “psychological oppressions” would be taken into consideration through the adjudication process.
Article 43 of the Draft
With article 43 of the Draft, scope of sexual abuse of children crime in article 103 of TPC is being amended. The draft subjects the sexual abuse crime committed against children to a certain rating like in sexual assaults committed against adults and sets forth a distinction between “sexual abuse with sudden act” – “sexual abuse” (and sexual harassment with the succeeding article) in crimes committed against children. In terms of crime, enforcement of a rating according to the act of the offender would cause a complete change in perception in sexual assault crimes committed against children. The draft with its current form, w
ill bring new ones to the already existing legal problems.
The existing TPC regulation concerning sexual abuse of children is already problematic and the subject is becoming more problematic with the new Draft on the agenda. TPC Women Platform consisting of women’s organizations requested that sexual experiences of children which they involve in with each other during sexual awakening/awareness/learning process should be considered separately from abusive actions of adults on children during TPC renovation held in 2005. Nevertheless, these justifiable warnings of women’s organizations were not taken into consideration. In the result of this, the adjudication system is pushed to consider an experience e.g. between a 12 year old boy and a 10 year old girl as sexual abuse of children. While the same erroneous regulation still remains in force, the problem is becoming more aggravated by increasing the imprisonment sentence which is 3-8 years to 8-15 years. A distinction shall certainly be established between sexual acts between children (such as game of playing house).
Article 44 of the Draft
Article 104 of TPC titled “Sexual intercourse between/with persons not attained the lawful age” imposing imprisonment penalty for sexual intercourse between adolescents at the ages of 15-18 and is already problematic is regulated in a manner to cause further problems with this Draft.
Despite all objections made by TPC Women’s Platform, the second clause of this regulation which is enacted in 2005 and consisting of two clauses was already annulled by the Constitutional Court. Despite the fact that the first clause needs to be removed from the law, now, its penalty is being rendered heavier. Currently being six months to two years, this penalty will be imposed as 2-5 years when this draft passes into law. It shall be remembered that sexual intercourse between adolescents at the ages of 15-18 which occur “without force, violence and deceit” is imposed with penalty by this article. While imposing penalty for a sexual act committed between young people who are at the age of secondary education solely with their own consent and between themselves is a significant social problem, now with the aggravation of such penalties, this social problem will grow more. TPC law on the agenda should annul article 104 despite aggravating the penalty set forth by the article.
Sexual intercourse between adolescents at the ages of 15-18 and marriages concluded under legal age as oppressed by the families are confused with each other due to “political intentions”. Child marriages is an aspect which shall be regulated with a special penal code article. The current TPC does not include a special and preventive regulation on this subject despite the availability of indirect articles. The Draft which is being argued does not contain a special regulation on this aspect.
While sexual abuse crimes committed against children by adults are kept on the agenda continuously for populism purposes; attempts to overlook “marrying off” children at the ages of 12-13 with social/regional/governmental ceremonies due to family oppression and social influence are not acceptable.
Article 45 of the Draft
Article 105 of TPC titled as “Sexual Harassment” will be amended. With the amendment phrase of “in the case that the act is committed against children, imprisonment penalty from six months to three years is imposed” is added to the text of the article. However, article 103 of current TPC considers any sexual act committed against children within scope of sexual abuse. Therefore, it is not possible (and not correct as explained above) to consider any act committed against children as “sexual harassment”. It is clear that such regulation will lead the way to impunity.
IN CONCLUSION,
We did not mention several favorable regulations such as the special provision to be enacted for sexual harassment committed with e.g. “mail and electronic communication means” and aggravation of sexual assault penalties “in environments where people live together” in this text, intentionally. Our purpose was to warn the entire public opinion against practices in TPC in force that are already problematic and would cause problems later. Using “Perfunctory betterments” in the draft instead of measures to resolve the problem by imposing regulations with aggravated penalties, does only have the quality of a “polish to blind the eyes of the public”.
We were not able mention the favorable/unfavorable amendments concluded either in Code of Criminal Procedures and Code of Criminal Execution included in “omnibus bill” within scope of this text.
We have concerns that excessive penalty aggravations realized in terms of sex crimes and the new aggravated regulation brought to such penalties pursuant to Code of Criminal Execution would impact 12-13 year old boys (and even girls) who would be stigmatized as “criminal offender”.
We have concerns about uncertainty of some new and favorable regulations concerning sexual assault crimes (on subjects such as office/public/working areas etc.) and their exercise on children.
We consider the amendment of article 231 of Code of Criminal Procedures particularly risky as it may end with resorting such measures (other than the decree of the adjudicator) to probation directors who are not required to be a law professional and being a bureaucrat of the ministry.
We have major concerns that the aspect of “being subject to medical treatment” that will be enforced on sex offenders with the amendment of article 108 of Code of Criminal Execution would turn out to be a chemical/surgical castration practice and such is being expressed with such inexplicitly and its enactment in law without mentioning the consent of the “offender/patient”. We consider that this constitutional subject concerning vital integrity of individuals being whipped out shallowly in the Draft, and details thereof being subject to a regulation to be enacted by the Ministry of Justice are another perilous example of deviating from the principle of constitutional state of law.
From Şiddete Son Women’s Platform
Prepared on June 4th, 2014 by Lawyer Çiğdem Hacısoftaoğlu, Lawyer Deniz Bayram, Lawyer Deniz Tuna, Lawyer Gökçeçiçek Ayata, Lawyer Hülya Gülbahar, Lawyer Nazan Şenol, Lawyer Sevtap Kasımoğlu.