What does the Turkish ruling on minors and sex say and where does the controversy arise from?

ANADOLU AGENCY
BRUSSELS
Published 20.08.2016 17:31
Updated 20.08.2016 17:33

On May 26, the Turkish Constitutional Court issued a ruling (E. 2015/108 and K. 2016/46) which has continued to stir controversy three months later. The court decided to annul a provision of the Turkish Penal Code which prohibited sexual relations with minors younger than 15, but some observers in the media and politics misinterpreted this as meaning that the age of consent would be lowered to 12 years of age. Behind the controversy, here it is what the law is all about.

Currently, Section 103, paragraph 1 of the Turkish Penal Code prohibits sexual relations with minors younger than 15, with violations incurring a penalty of 8-15 years in prison. The law is general and absolute. It does not take into account any mitigating circumstances, and the judge has no discretion. In some regions in eastern and southeastern Turkey, it is common for minors to get married. Sometimes after the marriage and the birth of children, the judiciary intervenes and the husband ends up in prison. Logically, since the law is categorical. When this happens the wife and children find themselves facing great difficulties, especially financial ones.

In such cases, families who are in this situation bring the matter before the court. They plead about the disproportionate nature of this provision and that its undifferentiated application causes them grave material injury.

The Constitutional Court followed this situation. It decided that each case should be considered in light of the prevailing circumstances, a gradual mechanism of sanctions rather than automatic imprisonment should be applied, and that in this context, the judge should be able to give some leeway.

In conclusion, the court annulled the contested provision, while providing a transitional period of 6 months (starting on July 13, the date of publication in the Official Gazette) during which time parliament must vote on a new provision that takes into account the ruling's reasoning. Until that time, the disputed provision will continue to be in effect. There is therefore no legal vacuum.

The case is delicate in the sense that it exists in the shadow of pedophilia, a highly sensitive subject. To the extent that it could lead to a proliferation of child marriage, it is legitimate to worry about the implications of this ruling. Note, however, that Turkey is not the only country concerned by this type of problem. For example in Germany, Article 176 of the Penal Code stipulates that the age of consent is 14 years and that anyone who reaches this age can have sex with an adult provided that there is no "exploitation" (in other words, there should be unambiguous consent).

In any case, in Turkey, the Constitutional Court has opted for an approach without denying the principles, but also favoring the consideration of a series of family realities. This was also explained in a press release. A review of this judicial episode reveals that the reality is nuanced, and thus the claim that "the court decriminalized sexual relations involving minors under 15 and lowered the age of sexual consent to 12 years" is false.

*The author, Mehmet Alparslan Saygın, is a legal expert and political scientist living in Brussels.

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