What is the Offense of Sexual Intercourse with a Minor (TCK Art. 104)?

Sexual intercourse with a minor, is a type of offense regulated under TCK Art. 104, which fundamentally targets the following situation:

• having completed the age of 15 with a child,
• without force (coercion), threat, or deception,
• Engaging in sexual intercourse.

Although this type of offense frequently comes to the agenda in practice with the debate of "whether there is consent or not," the lawmaker for the protection of the child has enacted a special regulation.

TCK Art. 104/1: Subject to Complaint

What Are the Conditions of TCK Article 104/1?

If the following conditions are met together, TCK Article 104/1 applies:

1) The victim must have completed the age of 15

The text of the law explicitly "child who has completed the age of fifteen" uses the expression.

2) There must be no duress, threat, or fraud

• Coercion: Physical coercion/violence
• Threat: Intimidation, threat of harm
• Fraud: Deception, trickery

If these elements are present, the case may give rise to other types of crimes (e.g., sexual assault/sexual abuse) depending on the circumstances. (A separate evaluation is required based on the specific incident.)

3) The act must be "sexual intercourse"

The wording of Article 104 of the TCK uses the term "sexual intercourse". Therefore, not every sexual behavior, but rather an act in the nature of sexual intercourse as required by the law, becomes the subject of debate.

What is the Penalty under TCK Art. 104/1?

• Imprisonment from 2 to 5 years

Is TCK Article 104/1 Subject to a Complaint?

Yes. The law explicitly states "upon complaint".

What happens if there is no complaint?

As a rule, if there is no complaint, an investigation/prosecution cannot be conducted. However, in the specific case a different crime is constituted (e.g., allegations of force/threat/fraud or a different qualification), the requirement for a complaint may change. Therefore, the contents of the file are decisive.

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TCK Art. 104/2: Commission by a Person Subject to a Marriage Prohibition (Without Requiring a Complaint)

What Does Marriage Prohibition Mean?

The phrase ""person who is prohibited from marrying the victim"" in TCK Art. 104/2 encompasses relationships where marriage is legally prohibited, such as certain degrees of kinship.

This area is technical and case-specific: Whether a marriage prohibition exists is evaluated based on the legal affinity/status of the parties.

Most Important Consequences of TCK Art. 104/2

1) No complaint is required

Under this paragraph, the crime:

• it is not subject to a complaint.

2) The penalty is more severe

• Imprisonment from 10 to 15 years

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TCK 104/3: Foster Care / Pre-Adoption Care Relationship (Non-Complaint Basis)

Which Circumstances Fall Under This Paragraph?

TCK 104/3 provides for an additional statutory aggravation for individuals who have a special protection, care, and supervision relationship over the victim child. For example:

• A person who undertakes the pre-adoption care of the child to be adopted
• A foster parent A person who has an obligation of protection, care, and supervision within the framework of a foster care relationship

Criminal Law and Procedure

• No complaint is required
• The penalty, TCK 104/2is applied as follows:
• Imprisonment from 10 to 15 years

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Frequently Asked Questions (FAQ)

1) What is the offense of sexual intercourse with a minor?

Sexual intercourse with a minor, is an offense under Article 104 of the TCK, which criminalizes sexual intercourse with a minor who has completed the age of 15 without force, threat, or deception under certain conditions.

2) Is TCK 104 subject to a complaint?

TCK 104/1 is subject to a complaint. However, No complaint is required under TCK 104/2 and TCK 104/3.

What is the penalty for sexual intercourse with a minor in years?

• TCK 104/1: Imprisonment from 2 to 5 years
• TCK 104/2 and 104/3: Imprisonment from 10 to 15 years

3) Why is the offense involving a person subject to a prohibition of marriage punished more severely?

The legislator has evaluated the act more severely in cases where marriage is legally prohibited (due to closeness/relationship) between the victim child and the perpetrator, and has established a system requiring no complaint and with higher penalties. has established a system.

4) Why is it punished more severely in the case of a person undergoing the foster family/adoption process?

Because these individuals are under the responsibility of protection, care, and supervision towards the child. The law punishes acts violating this trust relationship more severely (TCK Art. 104/3).

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Atty. Batın YILMAZ