What is Sexual Harassment?

For the offence of sexual harassment to arise, the perpetrator must direct sexually charged conduct at the victim without touching their body. The legislature extended criminal liability to conduct that falls short of physical contact but still disturbs a person's peace and sexual freedom.

The conduct must also be carried out with a sexual purpose. Behaviour that appears sexual in nature but is aimed solely at humiliating the other person may, depending on the facts, fall under the offence of insult rather than harassment. The act must also target a specific, identifiable victim; conduct aimed at an undefined audience may fall under separate offences.

The dividing line between the offences against sexual inviolability is physical contact. Once any form of physical contact occurs, the conduct is no longer harassment but sexual assault, or, where the victim is a child, sexual abuse.

Consent is another distinguishing factor. Lawful consent, given in advance by a person exercising their sexual freedom, can prevent the offence of harassment from arising. That consent must exist before the act takes place and the person must be legally capable of giving it — consent given by someone lacking the capacity for discernment is not considered valid.

The law sets the penalty for the basic form of the offence at imprisonment from three months to two years, or a judicial fine. Imprisonment and the judicial fine are structured as alternative penalties, and which one applies is assessed by the court based on the specifics of the file.

The legislature provides for a heavier penalty in several circumstances. These aggravated forms include:

• Where the offence is committed against a child, the penalty is imprisonment from six months to three years; a judicial fine is not available in this case.
• Where it is committed by exploiting the facility provided by a public office, a service relationship, or a family relationship, the penalty is increased by half.
• Where it is committed by a guardian, educator, instructor, caregiver, foster family, healthcare provider, or a person with a duty of protection or supervision, the penalty is increased by half.
• Where it is committed by exploiting the facility of working at the same workplace, the penalty is increased by half.
• Where it is committed through the facility of postal or electronic communication, the penalty is increased by half.
• Where it is committed by exhibition, the penalty is increased by half.

What Is the Aggravated Form Based on Consequence?

Where the victim is forced to quit their job, leave school, or separate from their family because of the harassment, the penalty cannot be less than one year. This aggravated form requires a reasonable causal link between the act and the victim's forced departure.

The basic form of the offence is subject to a victim's complaint. The victim must file a complaint within six months of learning of the act and the perpetrator's identity; this is a preclusive period, and no investigation can proceed once it has lapsed. The aggravated forms listed above, however, are investigated ex officio, without requiring a complaint.

The victim may withdraw the complaint at any point until the judgment becomes final. Withdrawal during the investigation phase results in a decision not to prosecute, while withdrawal during prosecution results in the dismissal of the case.

Given the penalty range set for the basic form of the offence, the deferral of the announcement of the verdict may become relevant where the other statutory conditions are met — such as the defendant having no prior conviction for an intentional offence and the victim's damages having been compensated. This assessment is made by the court on a case-by-case basis, and no particular outcome can be assumed in advance.

As with other offences against sexual inviolability, proving sexual harassment is often difficult, since the conduct frequently takes place without witnesses. Message records, electronic correspondence, witness statements, and any available recordings can serve as evidence in this process. Ensuring evidence is gathered properly matters for the soundness of the proceedings, and working with an İzmir criminal lawyer can be useful in this regard.

Anyone seeking information on proceedings related to a sexual harassment allegation may reach out through the contact page. Support in criminal law matters is provided across İzmir, particularly in Karabağlar, Konak, Buca and Balçova.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy