Purpose and conduct in sexual harassment
The conduct, carried out without bodily contact, must amount to sexually motivated harassment. Not every disturbing remark, attempt at flirting or rude message is an offense in itself. The whole content of the messages, the previous relationship, the recipient's reaction and the nature of the persistence call for a concrete assessment. The possibility that the act in question occurs together with other offenses must also be considered separately.
Related guide: Crimes Against Sexual Integrity: TCK 102–105, Elements of the Offenses, Penalties, Evidence and Court of Cassation Case Law.
The ease provided by electronic communication
Under TCK Article 105/2, taking advantage of the ease provided by postal or electronic communication tools is among the aggravating grounds. In its decision of 16.03.2023, E.2021/16795, K.2023/1450, the Court of Cassation 9th Criminal Chamber (Yargıtay 9. Ceza Dairesi) held it unlawful that no aggravation for the aggravated form was applied where sexually explicit messages had been sent via Facebook. This conclusion becomes meaningful only after it has been proven that the account belongs to the person who actually sent the message.
The reliability of digital evidence
Screenshots, chat exports, account records, device examination reports and server information serve different evidentiary functions. An image should not be assumed, on its own, to prove conclusively which account was being written with, when the message was sent or the whole context. The method by which the records were obtained, their integrity, their verifiability and the procedure by which they were added to the file must be assessed.
Complaint and the distinction from public prosecution
TCK Article 105/1 provides for a complaint in the basic offense. For the aggravated acts, the complaint position may differ. In its decision of 21.03.2023, E.2021/15534, K.2023/1566, the Court of Cassation 9th Criminal Chamber took the view that aggravated sexual harassment committed through electronic communication does not depend on a complaint. The specific facts and the date of the offense must also be checked.
The relationship between sexual harassment, stalking and threat
Constantly sending messages, following, threatening to disseminate private information or putting a person under pressure may raise the question of how the act relates to other types of offense. The limits on punishing the same conduct again under each legal characterization are examined through the rules on concurrence of offenses. TCK Article 123/A (stalking, ısrarlı takip), TCK Article 106 (threat) and the provisions on the protection of personal data are considered when their conditions are met.
The victim's rights and the defense
It is important for the victim to preserve their communications safely and to convey their need for protection to the competent authorities. For the suspect, ownership of the account, access, the full context of the message and lawful evidence are the key points. The fact that an accusation appears on a digital platform does not mean automatic identification or a definitive finding of guilt.
Account ownership and third-party access
The fact that a digital account name resembles the suspect does not by itself prove the identity of the user. The account's opening and usage information, device records, session data, the other party's account and technical examination may be assessed together. Where forged communication through someone else's account or the takeover of an account is alleged, it must be reasoned which alternative explanation was tested and how. The technical nature of the data received from the social media provider must also be explained.
The victim's digital security and lawful recording
With respect to unwanted communications, it is important to preserve the original form of the messages and the date and account details. However, a private individual who collects evidence by entering another person's account without permission may give rise to other legal problems. The integrity of the screenshots, expert examination where necessary and the lawful manner of obtaining them must be taken into account. Rather than sharing the content of the messages publicly, it may be more appropriate to submit it securely to the competent authority.
The boundary in electronic harassment and other offenses
Stalking, sexual harassment, threat, insult and the disclosure of personal data are different types of offense. Each element of the digital conduct must be investigated separately; it should not be assumed that all of them were committed automatically merely because they appear in the same online conversation. For TCK Article 105/2, the relationship between the ease provided by electronic means and the specific act must be demonstrated. The application of the penalty increase and the prosecution requirement must not be confused with each other.
Technical verification of digital account ownership
The account name that appears to have sent a message and the person who actually sent it are not always the same. IP and session information, device records, platform data, digital forensic examination, witness statements and the account holder's explanations must be assessed together. The defense that an account was taken over or used by a third party should be tested against concrete data, without being accepted or rejected in the abstract.
The aggravated form due to electronic communication
Under TCK Article 105/2, taking advantage of the ease provided by electronic communication tools is a special ground for an increase. The accessed passage of the Court of Cassation 9th Criminal Chamber decision of 16.03.2023, E.2021/16795, K.2023/1450 shows the assessment of the relevant increase for the act of sending messages with sexual harassment content via Facebook. Decision record. This decision does not mean that every online communication is automatically an offense; the harassing nature of the message and the mental element must be proven.
The complaint requirement and the distinction from other digital offenses
The conditions of TCK Article 105/1 and Article 105/2 must not be confused with each other. The Court of Cassation 9th Criminal Chamber decision of 21.03.2023, E.2021/15534, K.2023/1566 contains reasoning that aggravated electronic harassment does not depend on a complaint. Decision record. Stalking, threat and the unlawful disclosure of personal data are independent types of offense; each must be examined on the basis of its own statutory elements.
Preserving screenshots and privacy
The original messages, the times of communication, the source of the account and, where available, any information about the deletion of the message must be preserved. Bearing in mind that a screenshot may be edited or taken out of context, its reliability is investigated. Entering a third party's account without permission under the pretext of collecting evidence may give rise to a new unlawfulness. Images of a sexual nature must not be disclosed to the public in a way that violates the victim's privacy again.
Showing that digital records have not been altered
The device and application from which a screenshot was taken, the original records of the messages, the date and time information and, where relevant, the possibility of deletion or editing must be assessed. An image that has not been technically verified should not be accepted as conclusive on its own as to ownership and the date of sending. If it is possible to obtain data from the platform concerned, a properly issued court request (müzekkere) and a digital forensic examination are separate options.
The boundaries between sexual harassment and stalking and threat
While the sexual purpose and the harassing nature are important under TCK Article 105, stalking or threat have independent elements of the offense. That the acts appear in the same series of messages does not automatically constitute every offense. The number of repetitions, the manner of reaching the recipient, the sexual content, the intimidation and the effect on the person's peace must each be assessed separately according to the relevant type of offense.
Who is the author of the digital message: account ownership and the reliability of evidence
That the visible name of an account is known does not mean that the real person who sent the message has been determined with certainty. Account access information, device use, date and time, the full flow of the message, official platform records, if any, and other evidence must be examined together. Where there is a possibility of cropping or loss of context in a screenshot, obtaining the original data in the proper manner should be considered. Likewise, the defense that the account was used by someone else cannot be accepted as certain merely because it is asserted; it must be assessed against concrete indications.
The legal consequence of the increase due to electronic communication
In its decision of 16.03.2023, E.2021/16795, K.2023/1450, the Court of Cassation 9th Criminal Chamber stated that the sending of sexually explicit messages via Facebook must be assessed with regard to taking advantage of the ease provided by electronic communication tools. In its decision of 21.03.2023, E.2021/15534, K.2023/1566, the same Chamber also discussed the consequence of this aggravated form for the complaint regime. A digital act can therefore change both the penalty increase and the prosecution conditions. First decision · Second decision.
Separating sexual harassment, threat and stalking
Persistent messaging may raise the elements of threat or stalking as well as sexual harassment. However, the number of messages alone does not constitute all the offenses. For each offense, the statutory conduct, the mental element, the consequence for the victim and, where required, the complaint conditions must be determined separately. How the same message is to be treated across more than one offense depends on the rules of concurrence. In incidents involving a child, it is important not to create a second violation of privacy by circulating screenshots.
Conclusion
In assessments of the offense of sexual harassment in the digital environment, the relationship between the statutory elements of the offense or procedural act and the concrete evidence must be established clearly. The court's reasoning must address the decisive points of the accusation and the defense, and the legislation applicable on the date of the incident must be taken into account. Protecting the victim and guaranteeing a fair trial are not opposed to each other; they are complementary obligations of a state governed by the rule of law.
Frequently Asked Questions
Can the offense of sexual harassment be committed through Instagram?
Yes; if the statutory elements are met, TCK Article 105 may apply.
Is a screenshot of a message sufficient on its own?
Not in every case; ownership, integrity and context must be assessed.
Is digital harassment subject to a complaint?
For the aggravated form there is a different prosecution regime; the provision in force on the date of the offense is checked.
Are persistent messages always sexual harassment?
No; a sexual purpose and the other statutory elements are required.
Sources and legal bases
- Turkish Penal Code No. 5237 (relevant articles and general provisions)
- Code of Criminal Procedure No. 5271 (relevant provisions on evidence and procedure)
- Güneş & Güneş — Index of Offenses under the TCK and Special Laws by Article
- Court of Cassation 9th Criminal Chamber, 16.03.2023, E.2021/16795, K.2023/1450
- Court of Cassation 9th Criminal Chamber, 21.03.2023, E.2021/15534, K.2023/1566