Recording and Dissemination of Images Concerning Children’s Physical Privacy (Child Pornography) in Turkish Criminal Law[1]
Turkish Penal Code No. 5237 does not contain a crime definition encompassing the concept of “pornography.” Crimes related to child pornography are considered within the scope of the crime of “obscenity” (Article 226), which is regulated under the heading of crimes against public morality of the Turkish Penal Code. According to this provision, using children, simulated images of children, or persons appearing to be children in the production of products containing obscene images, text, or words; giving a child products containing obscene images, text, or words, or showing, reading, having read, or listening to their content; and showing, displaying, reading, having read, saying, or having said their content publicly or in places accessible or visible to children, are all considered obscenities.
The fact that child pornography is regulated under the crime of obscenity under the heading of crimes against public morality should not be interpreted as implying that the Turkish Penal Code considers child obscenity solely a matter of public morality. The crime of child obscenity, regulated in Article 226/3, is distinct from the other crimes regulated in the article. While other paragraphs of Article 226 penalize acts that expose children to obscene materials or facilitate the dissemination and publicization of such materials, the crime of child obscenity is punished by “using children.” Similarly, Article 226/7 of the Code stipulates that materials containing child obscenity content may only be used for scientific purposes in scientific works. In other words, unlike other obscene materials, it is not accepted that materials containing child obscenity may possess literary or artistic value. Therefore, it should be acknowledged that children’s sexual immunity is also protected in the crime of child obscenity. It should be noted that the perpetrator’s additional recording of the images in question constitutes a second act that constitutes the crime of obscenity.
The recording of intimate images of a child must first be considered within the framework of crimes against sexual integrity. Any sexual act directed at a child who is under 15 years of age, or who is over 15 but unable to comprehend the meaning and consequences of the act, should be considered within the scope of the crime of sexual abuse (Article 103). Furthermore, our legislation grants legal validity to the consent of a child over 15 only in relation to marital relations. With this exception, the use of a child over 15 years of age by someone over 18 years of age, based on their consent, for sexual gratification constitutes the crime of sexual intercourse with a minor. However, in cases where the child does not consent (the perpetrator uses force or threats), the punishment will still be subject to the crime of sexual abuse.
The act of an adult, for sexual gratification, inspecting the physical privacy of a child over 15 years of age, who is aware of the meaning and consequences of the act, based on their consent, constitutes the crime of sexual intercourse with a minor. The perpetrator may be punished upon complaint. However, in practice, in line with the prevailing view in the doctrine, penalties for sexual intercourse with a minor are not imposed only in cases involving penetration of the genital organs.
Court of Cassation, 18th Criminal Chamber, Date: 13.03.2018, Merits No. 2015/45221, Decision No. 2018/3497;
“…It was discovered that the defendant, the operator of the business called “Internet Cafe,” recorded obscene images of young girls entering the business’s restrooms using a hidden camera device, then converted these images into CDs and sold them to countless individuals. Therefore, instead of punishing the defendant separately for the acts of producing obscene images of children, as well as for the sale of these products, pursuant to both sentences of the aforementioned article of the law, pursuant to the provisions of the intellectual aggregation stipulated in Article 44 of the Turkish Penal Code, the verdict, although rendered in writing, cannot be overturned due to the lack of an appeal…”[2]
Court of Cassation, 12th Criminal Chamber, Date: 13.11.2019, Merits No. 2019/458, Decision No. 2019/10824;
“In the act of a 14-year-old child, who was dragged into committing a crime, who disclosed a semi-nude photograph of the victim, without her knowledge or consent, in relation to her physical privacy.” The legal elements of the crime of violating the privacy of private life by disclosing images or sounds as defined in Article 134/2 of the Turkish Penal Code are established; in addition, the 14-year-old victim published an obscene image on the internet that provokes and exploits sexual desires, offends the common feelings of shame and modesty of the society, the established rules of decency and is contrary to general morality, as defined in Article 226/5 of the Turkish Penal Code. “While the child who was dragged into a crime that caused more than one different crime with his/her one act and committed the crime of obscenity defined in its article and paragraph should be punished for the crime of obscenity, which requires a heavier penalty, according to Article 44 of the TCK, even though it is accepted that the photographs of the victim were published on the internet without her/his consent, the act should be evaluated within the scope of the crime of violation of the privacy of private life only by disclosing images or sounds, without taking into account the age of the victim and the characteristics of the detected photographs, and a written verdict should be delivered…” 12. CD E.2019/4170, K.2019/11965 T.18.12.2019; “In the acts of the defendant, who disclosed private images of the victim’s sexual and physical privacy at different times within the scope of the execution of a decision to commit a crime by publishing the photographs of the moment they kissed with the victim on the Facebook account they opened while they were together and by sending the victim’s nude photographs as messages to others, in a chain manner, in accordance with Article 134/2 of the TCK. It has been understood that the legal elements of the crime of breaching the privacy of private life by disclosing the images or sounds in the article and paragraph of the TCK are met; in addition to the crime of breaching the privacy of private life by disclosing images or sounds, the defendant, who published the nude images of the victim when she was 17 years old, which arouse and exploit sexual desires, offend the common feelings of shame and modesty of the society, the established rules of decency and are contrary to general morality, on 15.09.2014 on the social networking site called Facebook of which he is a user, has also committed the crime of obscenity defined in Article 226/5 of the TCK in addition to the crime of breaching the privacy of private life by disclosing images or sounds, in terms of the act that took place on the aforementioned date; and in relation to the act dated 15.09.2014, the defendant has been subject to a more severe penalty within the scope of the intellectual consensus regulated in Article 44/1 and paragraph of the TCK. “The conviction of a person solely for the crime of violating the privacy of private life by disclosing images or sounds in a chain, without considering the need for a separate conviction for the crime of obscenity in article and paragraph 1, is not accepted as grounds for reversal, as there is no appeal against it.”[3]
Court of Cassation, 14th Criminal Chamber, Case No. 2014/4095, Decision No. 2014/8896; “The defendant’s decision to deceive the victim and the girl named Nursel into undressing and then recording the images he obtained via SMS, including their genitals, on his computer constituted fabrication under Article 226/3-c-1 of the Turkish Penal Code, and thus, without considering the fact that this constitutes a chain of crimes, has been deemed unlawful…”[4]
[1] The following academic article was used in the preparation of this article: Boga, Bekir. “TÜRK CEZA HUKUKUNDA ÇOCUKLARIN FİZİKSEL MAHREMİYETİNE İLİŞKİN GÖRÜNTÜLERİNİN KAYDEDİLMESİ VE YAYILMASININ CEZALANDIRILMASI ÜZERİNE BİR DEĞERLENDİRME”. Necmettin Erbakan Üniversitesi Hukuk Fakültesi Dergisi, vol. 3, no. 1, 2020, pp. 33-61.
[2] Court of Cassation, 18th Criminal Chamber, Date: 13.03.2018, Merits No. 2015/45221, Decision No. 2018/3497.
[3] Court of Cassation, 12th Criminal Chamber, Date: 13.11.2019, Merits No. 2019/458, Decision No. 2019/10824.
[4] Court of Cassation, 14th Criminal Chamber, Case No. 2014/4095, Decision No. 2014/8896.