Sexual harassment involves disturbing another person to satisfy one’s sexual desires without any physical contact. Commonly known as “catcalling” or “verbal harassment,” this form of antisocial behavior can fulfill the elements of the offense.
Sexual harassment is considered a crime of free action, meaning it can be committed through various means such as phone calls, social media, or other communication tools.
Sexual harassment is regulated under Article 105 of the Turkish Criminal Code (TCK, Türk Ceza Kanunu in Turkish) within the section on “Crimes Against Sexual Integrity.” It punishes immoral actions that violate moral decency, without any physical contact between the perpetrator and the victim.
If there is any physical contact, even brief or unintentional, with sexual intent, it constitutes sexual assault, not harassment. For example, if someone says “Let me kiss you,” it is sexual harassment. However, if they physically kiss the victim, it becomes sexual assault.
It is crucial to emphasize that for an action to be classified as sexual harassment, there must be no physical contact such as touching, rubbing, or fondling. Once physical contact occurs, the offense escalates to sexual assault.
Categories of Sexual Crimes:
- Sexual Exploitation (Article 103 TCK): Involves sexual actions targeting children under the age of 15 through physical contact. For children aged 15-18, if deceit, force, or threats are used, the crime is still classified as sexual exploitation.
- Sexual Assault (Article 102 TCK): Applies to adults or minors aged 15-18, punishing sexual actions involving physical contact without force, threats, or deceit.
- Sexual Harassment (Article 105 TCK): Involves sexual behavior without physical contact, regardless of the victim’s age.
- Sexual Intercourse with a Minor (Article 104 TCK): Involves consensual sexual relations with minors between the ages of 15 and 18.
How is Sexual Harassment Committed?
Sexual harassment can occur without physical contact and may be either sudden or continuous. The perpetrator must act with sexual intent, targeting a specific individual.
If the action is not directed at someone in particular, other offenses such as insult, threat, or disturbing public peace may be considered.
Common methods of committing sexual harassment include:
- Verbal comments, gestures, or actions that the victim can hear or see.
- Harassing phone calls, messages, faxes, or letters.
- Sending emails, social media messages, or comments.
- Using social media apps like Instagram, Facebook, Twitter, or WhatsApp to send sexually suggestive content.
Actions and Behaviors that Constitute Sexual Harassment
The types of behaviors that qualify as sexual harassment have been solidified through various rulings of the Turkish Supreme Court (Yargıtay).
According to its practice, the following actions carried out with a sexual intent can lead to the crime of sexual harassment (YCGK-K.2015/34):
- Making obscene hand gestures,
- Blowing kisses with sexual intent,
- Proposing sexual intercourse,
- Exposing one’s genitals,
- Making comments like “Shall we make love?” or “Do you want to make love?” to the victim,
- Catcalling or making verbal comments with sexual intent to a person walking on the street (e.g., “babe,” “beautiful,” “you’re amazing”),
- Climbing up to the victim’s window and saying, “I will kidnap you; let me in, I’m coming in,”
- Sniffing a flower towards the victim with sexual desire,
- Repeatedly calling and saying things like, “I’m in front of your house, come outside, I will satisfy you physically and emotionally,” or “I love you, I want to marry you,”
- Sending messages like, “Do you want to talk? Missed call me; if you don’t want to, no one will know,”
- Saying to the victim, “I know you and your family, get in the car, I’ll take you where you’re going, I won’t harm you,”
- Making sexually explicit comments online, such as “Undress,” or “Your body is beautiful,”
- Proposing marriage to a married woman or telling her “I love you,”
- Giving underwear as a gift or proposing marriage with sexually explicit words.
How is Sexual Harassment Proven?
Proving sexual harassment is one of the most debated aspects during legal proceedings. Often, such incidents occur between just two people, with no eyewitnesses, and seldom involve video or camera recordings, making the existence of the crime difficult to prove.
Courts typically rely on the following evidence:
- Victim’s Statement: The victim’s testimony is a crucial piece of evidence in sexual harassment cases. The Supreme Court has outlined certain criteria for evaluating the credibility of such testimony. Key factors considered include:
- Whether the victim knew the perpetrator before the incident,
- If there was any pre-existing hostility between the victim and the perpetrator,
- Whether the victim has any reason to falsely accuse the perpetrator,
- The consistency and coherence of the victim’s statements throughout the process.
- Witness Statements: Testimonies from witnesses who saw or heard the harassment can be valuable evidence, especially if consistent with the victim’s account.
- Phone Communication Records: Although phone tapping is not permitted for such crimes, call logs can be used alongside other evidence.
- Physical Examination of Phones and SMS Messages: Under certain legal conditions (CMK Article 134), SMS messages, videos, and other digital content on phones can be examined.
- Secret Audio or Video Recording: In cases where harassment is spontaneous and no other evidence is available, secret recordings made by the victim may be considered legal evidence.
- WhatsApp, Telegram, etc.: Messages sent through platforms like WhatsApp can be used as evidence, provided they are properly documented.
- Social Media: Evidence from platforms such as Instagram, Twitter, or Facebook can also be utilized, although it is harder to obtain data from international social media providers.
- E-Tespit Method: The Turkish Notaries Union provides a service allowing users to formally document web pages or social media content 24/7, which can serve as legal proof.
Penalty for Sexual Harassment (TCK Article 105)
- Basic Sexual Harassment: A person who harasses someone sexually can face 3 months to 2 years of imprisonment, or a fine. If the crime is committed against a child, the penalty increases to 6 months to 3 years.
- Aggravated Sexual Harassment: If certain aggravating factors are present (e.g., abuse of power due to a work or family relationship, or exposure in a public place), the penalty is increased by 50%.
Statute of Limitations, Complaints, and Relevant Courts
The victim must file a complaint within 6 months for basic cases of sexual harassment. If no complaint is filed within this time, the right to complain is forfeited.
However, aggravated cases of sexual harassment are investigated automatically by the prosecution and have a statute of limitations of 8 years. Cases of sexual harassment are tried in criminal courts.
Converting to Fines, Suspension, and Deferred Pronouncement of Judgment
In some cases, imprisonment for sexual harassment can be converted into fines or the punishment may be suspended under specific conditions.
Courts can also issue a deferred pronouncement of judgment (hagb), meaning the sentence will not be enforced if the individual meets certain conditions during a probation period.
