The crime of sexual assault

While the sexual crimes in the TCC No. 765 were taken place under the heading of "The Crimes Against to Public Moral and Family", they were formed in the second section, penalising offences against the person and in the sixth chapter of this section as four articles in the Turkish Criminal Code No. 5237 and the sexual assault constituting the subject of the present dissertation was taken place in the article 102 in this chapter. Since the aim of the chapter to protect physical and sexual immunity of the person in accordance with taking his/her sexual freedom under preservation, regulating sexual assault under the heading of offences against the person is appropriate in our opinion. After promulgation of the TCC No. 237, numerous fundamental amendments regarding sexual crimes were made by taking into consideration the principles of the contemporary criminal law and therefore beneficial arrangments were issued by the Law No. 6545 in order to solve the significant problems about the enforcement of these new regulations. Anyone who has alrady turned eighteen years old might be the victim of this crime. In other words, victims might be anyone regardless off females or males. The simple form of this crime in is regulated the first sentence of the first paragraph, the form committed by molestation in the second sentence, the qualified form of the crime in the second paragraph and finally matters in aggravation is regulated in the third, fourth and fifth paragraphs. To comprise of the simple form of sexual assault, which is regulated in the first sentence of the first paragraph, the physical immunity has to be violated for the purpose of satisfying concupiscence, but sexual behaviours have not to become sexual intercourse. To comprise of the qualified form in the second sentence which is less punitive and known as molestation in the doctrine, the offender`s behaviours for satisfying his concupiscence have to be instantaneous and in the form of fleeting violations. It has been regulated the qualified sexual assault whose distinctive character is inserting an organ or another object into the body in the second paragraph. Commission of this offense in the conjugal community is distinctively taken place in the last sentence of this paragraph. As it is seen, the qualified form of this crime is regulated in a different paragraph. This has led to some debates over whether or not the qualified sexual assault is an independent crime and the criminal attempt is possible with regard to this crime. According to the legal opinion which we agreed upon it, although the first and second paragraphs of the article 102 are classified as simple and qualified forms of sexual assault, the criminal attempt is possible for this crime, since the sanctions of these crimes have been defined differently. The qualified forms of the crime requiring more punishment have been regulated in the third paragraph and it has been regulated that the imposed penalties shall be increased by half where the offence is committed "against a person who is physically or mentally incapable of defending themselves, by misusing the influence derived from a position in public office or a private working relationship, against a person of first, second or third degree blood relationship or a relative by marriage, by using weapons or together with the cooperation of more than one person, by benefiting from the advantage of the places where people have to live together". The situation where, as a result of the offence, the victim enters a vegetative state or dies has been regulated as a qualified form of the crime requiring more punishment because of its consequences in the fifth paragraph of the article. The situation where the offence results in the impairment of the physical or mental health of the victim was abolished by the Law No. 6545. It has been stated in the fourth paragraph of the article that where greater force than is necessary to suppress the resistance of the victim is used during the commission of the offense, the offender shall also be sentenced to a penalty for intentional injury in addition. Key Words: Sexual Assault, Victim, Organ, Qualified Sexual Assault