Türk-Alman Üniversitesi Hukuk Fakültesi Dergisi
Yazarlar: Kazım Furkan AĞKUŞ
Konular:Hukuk
Anahtar Kelimeler:Crimes against sexual autonomy,Sexual assault,Sexual abuse,Sexual intercourse with persons not attained the lawful age,Kinship,Mar- riage impediments,Adoption,Step-in-law relations
Özet: Kinship, as aggravated sexual offences, is regulated in the Turkish Penal Code (TPC) under Art. 102/3(b)-(c), 103/3(c)-(d), 104/2-3 and 105/2(a)-(b). These special provisions of kinship should be evaluated under civil and criminal law, because these provisions, such as “step-in-law, foster-in-law relations- hips” refer to the Turkish Civil Code (TCC). Within the scope of civil law, the regulations of kinship are mainly concerned with marriage and inheritance law. Kinship might be seen in marriage and engagement law as marriage impediments and in inheritance law as the rules of establishment and continuity of these relations. And these regulations are predominantly based on moral and eugenic considerations. Kinship by blood or marriage up to third degree, adoption, step-son relationship, and marriage impediments are regulated in TPC as aggravated crimes against sexual autonomy. However, the detailed evaluation of these regulations in comparison with the civil law regulations leads to the problems and contradictions that we have identified in this work. They were caused by the absence of kinship between spouses, the continuation and the expansion of kinship and marriage impediments after the expiration of marriage, the scope of marriage impediments, the obligation of life partners to care and to supervise, and the adoption. These problems were examined with case studies throughout the study. In the conclusion, I propose various amendments. First, I recommend abolishing the TPC Art. 102 / 3 (b). This regulation is not compatible with the legal interest of sexual autonomy and is not appropriate for the protection of victim. Considering judges are not allowed to examine whether the perpetrator and/or the victim knew each other and whether this relationship had a real effect on sexual assault. Second, in terms of TPC Art. 103/3 (c), aggravating terms as "Against a person who has a relationship by blood or marriage up to third degree, or step-father, step-mother, step-sibling or adopter" should be abolished from the article and replaced by “by the person permanently or temporary living together”. With this regulation, punishment of a life partner for sexual abuse would be in accordance with the principle of legality. And sexual abuse between the siblings, who are not legally step-siblings according to civil law but living together because of the relation of their ascendants, now would be aggravated sexual abuse. Third, the expression "by the guardian, educator, caregiver, foster family or persons who provide health services or have protection, care or super- vision obligations" in the clause of Article 103/3 (d) of the TPC, should be replaced by "The person who has actual or moral dominance over the victim by the responsibility, temporarily or permanently, for the protection, care or supervision of the victim, or by undertaking one of these duties”. With this proposal, the problems that I have stated, would be eliminated and the determination would be made over the damage that the victim may suffer through the victim-perpetrator proximity. Fourth, Art. 104/2-3 of the TPC should be rearranged according to Art. 103/3(c)–(d). This proposal aims to prevent unjust punishments arising from the differences of marriage impediments and kinships under Art. 102, 103 of TPC.