The Concept of Child Pornography in Turkish Law in Consideration of International ConventionsŞölen Çakıroğlu
Child pornography tops the list of child abuse. For this reason, international regulations have been made to prevent child pornography, and states have been requested to regulate acts related to child pornography as crimes within their domestic laws. Accordingly, child pornography has been regulated as a crime in many countries with the aim of protecting children. In this context, although various definitions exist regarding the concept of child pornography in many international and national regulations, problematic issues still exist regarding the contents of the concept. In order to provide a legal remedy, this study will discuss within its scope the definitions provided in international regulations and court decisions, as well as the different dimensions of child pornography these definitions emphasize, especially the problematic points. In this context, the study will attempt to draw a framework for the concept of child pornography. Filling out the content of the concept will also be substantial in terms of determining the scope of the crime.
Uluslararası Sözleşmeler Işığında Türk Hukukunda Çocuk Pornografisi KavramıŞölen Çakıroğlu
Çocukların istismarının en uç noktasını çocuk pornografisi teşkil etmektedir. Bu nedenle çocuk pornografisinin önlenmesi için uluslararası düzenlemeler yapılmış ve bu düzenlemelerde devletlerin kendi iç hukuklarında çocuk pornografisine ilişkin fiilleri suç olarak düzenlemelerine ilişkin çağrılarda bulunulmuştur. Bu doğrultuda da çocuk pornografisi birçok ülkede suç olarak düzenlenmiş ve çocuklar korunmaya çalışılmıştır. Bu bağlamda her ne kadar birçok uluslararası ve ulusal düzenlemede konuya ilişkin çeşitli tanımlar bulunsa da günümüzde hala kavramın içeriğine ilişkin problemli noktalar bulunmaktadır. Bunların çözümü adına çalışma kapsamında uluslararası mevzuatlarda ve mahkeme kararlarında verilen tanımlara ve bu tanımlarda vurgulanan çocuk pornografisinin değişik boyutlarına ve özellikle problemli noktalara değinilecektir. Bu kapsamda çocuk pornografisi kavramına ilişkin olarak genel bir çerçeve çizilmeye çalışılacaktır. Kavramın içeriğinin doldurulması bu kapsamda kalan suçların kapsamının belirlenmesi açısından oldukça önemlidir.
Child pornography has become more widespread with the development of the Internet and virtual platforms and has created one of the biggest dangers on the Internet for children. When considering that child pornography also involves their being sexual abused, the importance of the issue becomes too great to ignore. For this reason, child pornography has been seen as a problem that should be solved not only by legal experts, but also by psychiatrists, sociologists, educators, and parents, with studies also having been carried out in every discipline to prevent the current problem. In line with this purpose, some regulations have been passed to prevent child pornography, with international regulations having called upon states to criminalize acts related to child pornography, as well as allowing children access to pornographic products. Despite states having regulated child pornography as a crime in their domestic laws, uniformity generally does not exist in its definitions. To say that the reason for these inconsistencies is due to how the concept is interpreted differently in terms of social understanding would not be wrong. For instance, even different interpretations within the legal sense of the concept of child exist, despite this concept being considered very basic. As an accordant example, different penalties in German criminal law are given regarding the use of children between 14-18 and those under 14 years of age in pornographic products. Should this type of grouping be made among children in this regard? Various interpretations of even simple-looking concepts, such as children have major practical significance. For this reason, consensus regarding the child pornography concept must first be reached so that standard regulations can be made regarding the prevention of child pornography within the framework of international requirements, as well as to regulate and adapt domestic law in light of international conventions. Although definitions of the subject are found in many international and domestic regulations, the concept still has problematic points.
One of the points that should be mentioned in this regard is the concept of child pornography itself. When considering that a child’s best interests is a value that needs to be protected to a high degree, how accurate would is the use of the concept of pornography? Despite the familiarity of the usage of child pornography, the concept of pornography here is insufficient for protecting children from sexual abuse. As a matter of fact, when looking at general definitions, the concept of pornography is briefly described as materials in which people are made into sexual objects and shown with just aesthetic concern for the purpose of sexual arousal. In this case, if child pornography is interpreted as the use of children in pornographic products within the scope of its literal meaning, only very grave actions on children would be considered within the scope of child pornography. Although child pornography is more commonly used as a general concept, the Turkish Penal Code does not contain the concept of child pornography, with all acts related to child pornography being regulated under the crime of obscenity.
Obscenities are defined as products that carry no artistic, scientific, or literary value; that offend the sense of social Decency; that aim at feelings of lust; and that are produced only to satisfy these feeling. When considering both concepts in the light of the definitions and explanations in the doctrine, the scope of the concept of obscenity can clearly be seen to be more comprehensive than the concept of pornographic products. Therefore, to say that the term “obscenity” as used in the Turkish Criminal Code rather than the term “child pornography” and the search for obscene products in terms of the occurrence of a crime provide more effective protection for children would not be wrong. This study discusses the distinctions between obscenity and pornography and compares them with other concepts in this context. In addition, the study emphasizes what criteria determine the distinction between these concepts.
In conclusion, the study has first compiled within its scope the definitions in international regulations regarding the concept of child pornography. Rather than giving only definitions here, the study also compares the definitions found in these regulations with one another. Afterward, the study evaluates the regulations regarding child pornography in the Turkish Penal Code in light of all these definitions and discusses which of these definitions is able to provide more effective protection for children. When making these determinations, the study also takes into consideration Turkish and foreign judgments, as well as the criteria that have been brought in the context of these decisions. In addition, comparing concepts and criteria developed within the framework of court decisions will in fact be very useful in determining what content the concepts should contain.