What is the Crime of Sexual Harassment (TCK Art. 105)?

The crime of sexual harassment, a person for sexual purposes is an offense type that penalizes behaviors such as annoying, disturbing, or unsettling. This crime is regulated under Article 105 of the Turkish Penal Code No. 5237, has been regulated.

Sexual harassment generally arises through behaviors such as "sexually suggestive remarks, messages, insinuations, and persistent annoyance." The crucial point is that TCK 105 is not automatically applicable in every case; the action must it must have a sexual intent and depending on the specific circumstances of the case harassment it must be of such a nature.

Note: This article is for informational purposes only. For a legal evaluation of the specific case, all evidence and the entirety of the incident must be examined.

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Penalty for the Crime of Sexual Harassment Pursuant to TCK Article 105

Base Sentence (TCK Art. 105/1)

According to TCK Art. 105/1, sexually motivated harassment a person who commits this act shall, upon the victim's complaint:

• imprisonment from 3 months to 2 years or
• judicial fine

may be sentenced to.

Sentence if the Victim is a Child (TCK Art. 105/1 – child)

Act committed against a child if committed, the penalty is:

• imprisonment from 6 months to 3 years

has been regulated as.

Here, the concept of "child" generally refers to a person who has not reached the age of 18. refers to.

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Is the Crime of Sexual Harassment Subject to a Complaint?

General Rule: Requirement of Complaint (TCK Art. 105/1)

The investigation and prosecution of the basic form under TCK Art. 105 are generally subject to the victim's complaint. In other words, if the victim does not file a complaint (and barring any exceptional circumstances), the criminal investigation may not proceed.

Why is a Complaint Important?

• A complaint may play a pivotal role in initiating the process.
• In terms of gathering evidence (message logs, screenshots, witness statements, etc.) early application is generally important.

Since the complaint period and application details may vary depending on the specific case, consulting an attorney is recommended.

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Qualified Circumstances of Sexual Harassment (Aggravating Factors)

According to TCK Article 105/2, in certain cases the sentence increased by half. These situations arise because the offense is considered more severe due to the perpetrator's position or the manner in which the act was committed.

Advantage Conferred by Public Duty / Service Relationship / Domestic Relationship (TCK Art. 105/2-a)

What does this mean?

If the perpetrator commits the harassment more easily by utilizing the proximity or power arising from a public duty, service relationship, or domestic relationship, the sentence is increased.

Example scenarios

• Harassment within a supervisor-employee relationship
• Harassment utilizing an authority/dependency relationship within the family

By a Guardian, Teacher, Caregiver, Healthcare Personnel, etc. (TCK Art. 105/2-b)

What does this mean?

Mağdur üzerinde koruma, bakım, gözetim The abuse of trust by individuals who bear a responsibility or a specific relationship of trust constitutes an aggravating factor.

Example scenarios

• Öğretmenin öğrenciye yönelik taciz içerikli mesajları
• The use of authority/access by a caregiver or healthcare personnel

Aynı İşyeri Kolaylığıyla İşlenmesi (TCK 105/2-c)

İşyerinde cinsel taciz

The fact that the perpetrator and the victim work in the same workplace may facilitate the commission of the crime as it creates continuous contact/access. Therefore, an increase in sentence may come into question.

Via Mail or Electronic Communication Means (TCK art. 105/2-d)

Sexual harassment on social media and messaging applications

Acts of harassment committed using tools such as WhatsApp, Instagram DMs, e-mail, and SMS can be evaluated within this scope.

This heading is of great importance in practice because:

• Digital traces such as screenshots, message records, links, and usernames may be found as evidence.
• The harassment being "persistent" and "systematic" can be influential in the evaluation of the case.

By Way of Exposure (TCK Art. 105/2-e)

The penalty is also increased for sexual harassment committed by way of exposure (e.g., exposing sexual organs). Here, boundary disputes with other types of crimes may arise depending on the nature of the act; it is evaluated based on the specific circumstances of the case.

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What Happens If the Victim is Forced to Leave Their Job / School?

The final sentence of TCK Article 105/2 introduces a very critical provision:

• If, due to this act, the victim is forced to leave their job, is forced to leave school or is forced to leave their family has been compelled to do so,
• penalty to be imposed cannot be less than 1 year.

Why is this provision important?

Because in this case, the legislator has established a higher lower limit has determined.

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Frequently Asked Questions (FAQ)

1) What is the difference between the crime of sexual harassment and sexual assault?

The general distinction is as follows: Sexual harassment generally arises through behaviors such as verbal remarks, messages, and harassment, whereas; sexual assault encompasses more severe acts directed against bodily integrity. However, the boundary may vary depending on the nature of the incident.

2) Can a lawsuit not be filed without a complaint in cases of sexual harassment?

As a rule, under the basic form of TCK Article 105, a complaint is required. However, the process may vary depending on the nature of the incident, the victim's situation, and the involvement of other offenses.

3) Is a message sent via social media considered sexual harassment?

If the messages are of a sexual nature and harassment and are committed via "electronic communication tools" pursuant to TCK Article 105/2-d, an enhancement of penalty may come up.

4) Is the penalty for sexual harassment in the workplace heavier?

If committed by taking advantage of the convenience provided by working in the same workplace (TCK art. 105/2-c), the sentence increased by half. Furthermore, if the victim is forced to leave their job, the sentence cannot be less than 1 year.

5) What is the penalty for sexual harassment against a child?

According to TCK art. 105/1, if the act is committed against a child imprisonment from 6 months to 3 years penalty is prescribed.

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Atty. Batın YILMAZ