Models of Sexual Assault Laws and Evidentiary Matters
Selman Dursun, Ali Emrah BozbayındırOne of the most important topics of discussion in criminal law in recent years has been the changes in understanding regarding sexual offenses and their related concepts. Following the acceptance that the legal value protected under sexual offences is individual rather than social, fundamental differences have occurred in the approaches and concepts. The current stage of this development involves a search for different models for this offense, particularly with regard to defining the offense of sexual assault. The traditional coercion-based model has come under various criticisms over time, with the so-called consent models having become a current issue. In addition to the coercion-based model, this study analyzes the consent-based models as affirmative and negative consent models of will and examines their implications for the law of evidence. The study briefly mentions French, Italian, Spanish, and German codes as examples of different models. Lastly, the study evaluates the regulation of sexual assault under Turkish law based on the abovementioned models. Regarding its historical development prior to the reform of the Penal Code in 2005, Turkish law adopted the coercion-based model. The article also discusses the post-new code discussions in detail.
Cinsel Saldırı Suçunun Tanımında Modeller ve İspat Meselesi
Selman Dursun, Ali Emrah BozbayındırSon yıllarda ceza hukukunun en önemli tartışma konularından birini cinsel suçlar alanında yaşanan anlayış ve buna bağlı kavram değişiklikleri oluşturmaktadır. Özellikle cinsel suçlarla korunan hukuki değerin toplumsal olmaktan çıkıp bireysel bir değer olarak kabulünden sonra bu alanda esaslı yaklaşım ve kavram farklılıkları temayüz etmiştir. Bu değişim sürecinin son aşamasını bilhassa cinsel saldırı suçunun tanımında yeni model arayışları teşkil etmektedir. Geleneksel cebir modeli zaman içerisinde çeşitli eleştirilere maruz kalmış ve rıza modelleri olarak anılan yaklaşımlar öne çıkmaya başlamıştır. Bu çalışmada cebir modelinin yanı sıra rıza modelleri, (“yalnızca evet evet demektir” olarak anılan) müspet ve (“hayır hayır demektir” olarak anılan) menfi irade modelleri olarak ele alınmış ve bunların ispat hukukuna etkisi irdelenmiştir. Bu bağlamda çalışmada cebir modelini esas alan Fransız ve İtalyan hukuku ile müspet irade modelini seçen İspanyol hukukuna kısaca değinilmiş, menfi irade modelini kabul eden Alman hukuku ayrıntılı olarak incelenmiştir. Nihayet Türk hukukundaki cinsel saldırı düzenlemesi mezkûr modeller temelinde değerlendirilmiştir. Tarihsel gelişimi içinde Türk hukukunda 2005 yılında hayata geçen ceza hukuku reformu öncesinde cebir modeli benimsenmiştir. 2005 sonrası ve halen yürürlükte olan kanun metninde hangi modelin esas alındığı ayrıntılı olarak tartışılmıştır.
Sexual assault law has recently become a matter of constant debate, with significant shifts and changes having occurred in this area of law around the world. In some jurisdictions, the traditional definitions of rape that were premised upon a coercion-based model have increasingly come under criticism and been replaced by so-called consent-based models starting with various Common Law jurisdictions. In other words, a change of perspective has occurred from viewpoint of the offender’s violence and coercion to the victim’s lack of consent. The present study provides an overview of these models and debates with regard to different approaches in how sexual consent is defined by way of comparing three existing models: the coercion-based model, the negative consent model, and the and affirmative consent model. The study does not limit itself to an in abstracto discussion but instead compares the context and content reforms of various jurisdictions in such states as Germany, France, Italy, and Spain. The article thereby aims to put the Turkish definition of sexual assault in the context of the current debates surrounding sexual assault laws while also taking due note of the Turkish legal literature and the jurisprudence of the high courts. Indeed, the last section of the article embarks upon an engaging debate regarding not only the different models of sexual assault laws but also the issues in Turkish law that the somewhat ambiguous wording of the definition of the offense of sexual assault has caused.
The article thus commences with an overview of the current landscape regarding the novel consent-based approaches toward sexual behavior and their impact on the law of rape. The heated debates regarding the abandonment of the traditional coercionbased model in Germany and the arguments in favor and against the newly introduced definition of sexual assault based upon the so-called slogan of “no means no” provide the first glimpse concerning the recent reforms of sexual assault laws that have been taking place across Europe. After this broad overview, the study first focuses on different models of coercion-based rape and the role consent has in such a model by discussing a pure coercion model in particular, one which requires a form of resistance on the part of the victim, as well as a milder version of this model which encompasses cases where such resistance may reasonably not be expected, such as regarding surprise attacks or the so-called “climate of violence” cases. In this vein, French and Italian laws have tended toward a rather broader definition of the concept of coercion, and this deserves closer attention.
Following the analysis of the coercion-based model, the study analyzes the affirmative “only yes means yes” model of consent, as adopted most recently in Europe by some Anglo-Saxon jurisdictions and by Sweden and Spain. After discussing the pitfalls of such a model, the study provides an extensive analysis of the new German law on sexual assault as an example of the negative consent model. The new definition of sexual assault contained in Article 177 of the German Criminal Code provides that “whoever, against a person’s discernible will, performs sexual acts on that person or has that person perform sexual acts on them, or causes that person to perform or acquiesce to sexual acts being performed on or by a third person incurs a penalty of imprisonment for a term between six months and five years.” The legislative materials explicitly show that a negative consent “no means no” model has been adopted. This core idea is encapsulated in the phrase “against a person’s discernible will.” This paper engagingly analyzes the scholarly debates surrounding this new model, as well as the problems of legal certainty and security caused by ambiguous terms adopted by the legislature without due consideration and care. Indeed, cases such as the doctor from Bamberg clearly illustrate the problems associated with this new model on sexual assault law. In tandem with the problems the new definition has caused, the study also debates evidentiary issues regarding sexual assault and the impact new laws have with regard to evaluating evidence.
Overall, the present study takes due note of the complex, multi-layered, ambiguous, interdependent, and intersubjective nature of sexual interactions when discussing whether the new models of sexual assault laws provide a coherent and convincing baseline for protecting victims of sexual assault while at the same time providing legal security and certainty regarding the boundaries of permissible sexual behavior and of criminal offense.
