Indecent Acts (TPC Art. No. 225)
Hazal Algan CansevenThe crime of indecent acts is regulated in Article 225 of the Turkish Penal Code (TCPC) No. 5237, with acts involving intentionally engaging in sexual intercourse and exhibitionism being covered by criminal sanctions in this same article. Besides having a wide application area, this type of crime also involves many discussions in terms of crime theory, such as the legal value protected by this type of crime, how to make sense of the concepts of sexual intercourse and exhibitionism in the legal text, whether the purpose or motive of the perpetrator has an effect on the formation of the crime in terms of its moral element, and what the characteristics this type of crime has in terms of the application of the provisions of participation. Many issues require a holistic analysis within the framework of crime theory. In this context, examine the types of crime is thought to be useful within the framework of both German and Turkish teachings and current judicial decisions. Within the scope of the study, the crime of indecent acts is the subject of analytical examination within the framework of the examination method of the crime theory adopted by the new TPC.
Hayasızca Hareketler Suçu (TCK M 225)
Hazal Algan CansevenHayasızca hareketler suçu 5237 sayılı TCK’nın 225. maddesinde düzenlenmiş ve bu maddede kasten alenen cinsel ilişkide bulunma ve teşhircilik yapma fiilleri ceza yaptırımı ile karşılanmıştır. Söz konusu suç tipi, geniş bir uygulama alanına sahip olmasının yanı sıra suç teorisi açısından pek çok tartışmayı da bünyesinde barındırmaktadır. Nitekim söz konusu suç tipinin koruduğu hukuki değerin ne olduğu, kanuni tipte yer alan cinsel ilişki ve teşhircilik kavramlarının nasıl anlamlandırılacağı, suçun manevi unsuru açısından failin amaç ya da saikinin suçun oluşumuna etkisinin olup olmadığı, suç tipinin iştirak hükümlerinin uygulanması açısından gösterdiği özelliklerin neler olduğu gibi pek çok husus suç teorisi çerçevesinde bütünsel bir incelemeyi gerektirmektedir. Bu kapsamda hem Alman öğretisi hem Türk öğretisi hem de güncel yargı kararları çerçevesinde suç tipinin incelenmesinin faydalı olacağı düşünülmüştür. Çalışma kapsamında hayasızca hareketler suçunun, yeni TCK’nın benimsediği suç teorisinin inceleme metodu çerçevesinde, analitik olarak tetkik edilmesi konu edilmektedir.
Article 419 of TCPC No. 765 defines the punishment for those guilty of the crime of indecent acts as follows: “The punishment for those who act indecently in public shall be imprisonment from fifteen days to two months and for those who have sexual intercourse in this way shall be imprisonment from six months to one year.” With the regulation in Article 225 of TCPC No. 5237, the type of crime and punishment was changed as follows: “A person who engages in sexual intercourse in public or who exposes themself in public shall be sentenced to a penalty of imprisonment for a term of six months to one year.” With this amendment, the crime was limited to acts of publicly engaging in sexual intercourse and public exhibitionism, and the difference between these said acts regarding punishment was abolished.
Although the crime of indecent acts does not constitute a physical attack against its victims, their moral values are damaged, and such acts cause psychological shocks that under certain conditions will put people at a disadvantage, even physically. For this reason, in my opinion, the legal value protected by this crime is believed to be the rights to develop one’s spiritual existence and to live in a healthy environment.
Although the crime of indecent acts does not constitute a physical attack against its victims, their moral values are damaged, and such acts cause psychological shocks that under certain conditions will put people at a disadvantage, even physically. For this reason, in my opinion, the legal value protected by this crime is believed to be the rights to develop one’s spiritual existence and to live in a healthy environment.
Regarding legal types, the elective acts of this crime are sexual intercourse and exhibitionism. In my opinion, sexual intercourse may be defined as any kind of sexual act that results in ejaculation and involves interpersonal contact, regardless of the genders of the parties. Within the framework of this definition of sexual intercourse, a reciprocity is sought with both parties having to consent in order to talk about a sexual relationship. The acts constituting exhibitionism are also not listed per item in the law, and the acts that violate the legal value protected by crime should be evaluated and determined for each concrete case. For the crime to occur, the acts must be done publicly, with publicly being understood to mean that the act can be visible to one or more persons who are not involved at the time the act is performed.
The subjective element of crime is intent. Committing this crime is possible with probable intent. In terms of the crime of indecent acts, a separate purpose or motive is not foreseen in the legal definition of the crime. Although the doctrine states that the crime of indecent acts does not occur when a person performs the acts with no sexual motive, making such an assessment is impossible due to the perpetrator’s motivation being a separate subjective element; in other words, their purpose apart from intent is not included in the crime type. Performing the act deliberately is sufficient to show the perpetrator’s guilt, while performing this act for a purpose is not necessary to show guilt.
The use of freedom of expression and dissemination of thought or the execution of these types of acts that constitute the crime of indecent acts within the limits of the use of the right in the context of the freedom of science and art do not constitute a violation of the law.
Exhibitionism is defined in the science of psychiatry as a state of sexual disorder that should be considered within the scope of mental illnesses, and a conclusion should be reached according to its effect on the ability to be at fault by evaluating it within the scope of Article 32 of the TCPC.
In terms of the act of having legal public sexual intercourse, the crime of indecent acts is a crime with multiple perpetrators. The act of exhibitionism, which is legally envisaged as another optional act of this crime, should be noted as only being able to be committed through the perpetrator’s own bodily behavior, and so the crime is one that can be committed in person.
In terms of the aggregation of crimes, although the doctrine should be noted to state that the crime of indecent acts also occurs when the act of sexual abuse or sexual assault is committed publicly, it also states that information gathering should be applied. In this case, only that which qualifies as sexual abuse or as sexual assault will be mentioned.
