Özet:

It is seen by the doctrine and High Court decisions that there are various opinions regarding the conditions of application of this offense in question. This is due to the inattentive language in the writing of this type of offense and the different meanings that the authors give to the concept of sexual intercourse. The theory of legal interest in this offense is the sexual inviolability of the child. The perpetrator of this offense can either be a woman or a man. The perpetrator does not need to be over 18 years of age or be an adult. A boy or a girl who has completed the age of 15 at the time of the criminal act and who has developed the ability to perceive the legal meaning and consequences of the act and to direct their behavior is regarded as the victim of this offense. Although the High Court defines sexual intercourse as “the insertion of a man’s genitalia into the woman’s vagina or anus or the insertion of a man’s genitalia into another man’s anus”, in our opinion, any kind of intercourse that occurs by “inserting or making someone to insert” “an organ or another object” into the body should be considered as sexual intercourse and the idea of defining the sexual intercourse only through “a male’s sexual organ” should be abandoned. It was sought on the law that sexual intercourse should be carried out without coercion, threat, deceit, or any other reason affecting the will of the victim. This version of the provision embodies the traditional and inaccurate premise that “in any case where the victim does not resist sexual intercourse, there also is a consent to sexual intercourse”. What needs to be done here is to clearly include the “existence of the victim’s consent” to the provision. With regards to the moral element, it is not legally important whether the perpetrator acts with a sexual motive or with the aim of lust or satisfying his sexual desires. In terms of this type of offense, sexual relations between a husband and wife in a marriage union will benefit from the exercise of the right as a lawful justification. There are three mitigating circumstances of offense for this offense. When these forms arise, both the prosecution will be carried out ex officio and the duration of the prison sentence will be increased severely. For this type of offense, it is possible that all forms of complicity, especially being a joint perpetrator will take place. In the simple sense of this offense, the right to complain belongs to the child victim who has the mental competence.

Anahtar Kelimeler: