Mistake in Sexual Abuse and Sexual Assault Offences: the Victim's Age, Intent and the 2026 Case Law of the Criminal General Assembly of the Court of Cassation

The legal and philosophical touchstone for applying the mistake provisions

Criminal law examines not only how socially reprehensible an act is, but also which facts the perpetrator knew and willed to bring about. The need to protect children's sexual inviolability effectively operates together with the requirement to prove the statutory elements of the offence and with the principle of fault. The central question is not a choice between protecting the victim and treating the perpetrator as automatically guilty: the state must both protect the victim effectively and base every conviction on concrete and lawful evidence.

The material existence of the act and the perpetrator's state of mind are separate questions

Whether a sexual act took place, the victim's age on the date of the act, the legal character of the conduct, whether force or threat was present and the perpetrator's knowledge of each of these are different subjects of inquiry. The answer to one of these questions cannot stand in for the answer to another.

What is the assessment of mistake not meant to do?

Article 30 TCK is not a provision that accepts every claim about age as true. Nor does the fact that a child gave an older age settle the outcome on its own. The judicial authority assesses the whole case file, following the procedures designed to protect the victim and taking into account the context of the statements.

Statutory framework: Articles 30, 103 and 104 TCK and Article 223 of the Code of Criminal Procedure (CMK)

Article 30/1 TCK: Mistake about the material elements of the offence

A person who, at the time of committing the act, is unaware of a material element in the statutory definition of the offence is not deemed to have acted intentionally with regard to that element. Liability for negligence remains reserved where the negligent form of the offence is separately provided for by law. Where age is a constituent element of the offence, a mistake can be examined within this framework. mevzuat.gov.tr

Article 30/2 TCK: Mistake about aggravating or mitigating circumstances

A mistake about the existence of a qualified circumstance that calls for a heavier or lighter penalty may have consequences different from those for the basic offence. First, it must be determined in law whether age is a constituent element of the specific offence or an element linked to a qualified form.

Article 30/3 and Article 30/4 TCK: Unavoidable mistake

A mistake about the conditions of a ground that removes or reduces criminal liability and a mistake about whether the act amounts to a wrong are regulated differently. Misperceiving a fact is not the same as a mistake about a legal prohibition. In most discussions the victim's age concerns knowledge of a material element; it is wrong to place every concrete case directly under Article 30/4.

Article 103 and Article 104 TCK: Age thresholds, will and legal characterization of the offence

Article 103 TCK sets out different elements for children under fifteen, for children who have completed fifteen but whose capacity to understand the legal meaning and consequences of the act has not developed, and for children aged fifteen to eighteen. For the last group, force, threat, deception or another cause affecting the will requires separate examination. Article 104 TCK regulates a separate offence of sexual intercourse with a minor. Having completed the age of fifteen does not mean that every sexual act is lawful in every situation.

Related articles: Offences Against Sexual Inviolability: Articles 102–105 TCK, Elements of the Offences, Penalties, Evidence and Court of Cassation Case Law; The Offence of Sexual Abuse of Children: Article 103 of the Turkish Penal Code, Age Thresholds, Penalties, Aggravated Forms and Court of Cassation Case Law; Sexual Intercourse with a Minor under TCK 104: Age, Consent, Complaint and Legal Characterization.

Article 223/2-c CMK: Acquittal because intent is lacking

Where a mistake about a material element removes intent and the negligent form of the offence is not provided for, Article 223/2-c CMK may come into play for the relevant charge. That said, the elements of a different offence, or of other accompanying offences, may be assessed separately.

How is a mistake about age established? The Criminal General Assembly's model of evidence

The date of the offence is decisive

Age information that the perpetrator learned later cannot be treated as if it had been known on the date of the offence. Conversely, information contained in messages, conversations and the social circle before the date of the offence must be investigated by the court.

The age and date of birth on a social media profile

A false profile age, or records showing that the person claimed to be older, can be significant; however, who created the profile and when, the whole of the correspondence and other indications must be examined. A single message saying 'I am 18' does not invalidate the whole flow of the conversation.

The difference between a profile statement and actual knowledge

A date shown on a social media profile does not form a firm conviction on the element of knowledge unless it is also shown that the perpetrator saw that record and took it to be correct. The account holder's statements, the history of communication and contrary records are examined together.

Integrity of records and technical verification

A screenshot may reflect only an incomplete part of a sequence of messages. How the evidence was obtained, its originality, the timestamps and the context must be assessed from a digital forensics perspective.

Meeting in person and the duration of the relationship

Meeting for the first time, brief online contact, or the parties' not knowing each other's social circles can be assessed differently from a long-standing close relationship. Even so, brief contact is not an automatic presumption of mistake.

Knowledge of school, grade, family and social circle

The name of the school, the grade level, mutual friends, the length of the acquaintance, contact with the family and conversations in which the victim stated her or his age can strengthen or weaken the credibility of a claimed mistake.

Physical appearance and cognitive development

Physical appearance alone does not establish age conclusively. Forensic medicine, the birth record, images and expert observation are assessed together; looking older than one's age is different from the perpetrator actually being mistaken.

Birth record and conflicting medical reports

Conflicts between a home birth, a late civil registration or bone age reports are separate evidential problems. Establishing the victim's actual age and establishing whether the perpetrator knew that age must be done under two separate headings.

Consistency and change in the parties' statements

What matters is whether the defence has kept the same substance from the outset, whether it is corroborated by the victim or a witness, and whether contrary evidence exists. A defence that changes between stages is not in itself a ground for conviction; the factual contradiction created by the change must be shown.

Force, threat, deception and other causes affecting the will

Even where there is a mistake about age, force, threat, deception and other facts affecting the will do not automatically fall away. In particular, as in decision No. 2026/346, leaving the age-mistake defence without reasons on the ground that an allegation of force exists is also not the correct method; each element must be discussed separately.

A comparative map of the 2026 decisions of the Criminal General Assembly of the Court of Cassation

Important: The outcomes in the table are summaries. Decisions whose full text could be accessed are linked in the sources. These summaries must not be used as if they were final outcomes for all defendants or for accompanying offences.

Decisions accepting a mistake: a reasoned comparison

01.07.2026 – E.2025/9-418, K.2026/442

Brief online communication, the victim's presenting herself or himself as older than she or he was, and the support given to the defence by the victim's statement were considered together. The criterion here is not the age shown on the profile alone, but whether the contrary — that the perpetrator knew the actual age — can be proved. Text of the decision

10.06.2026 – E.2025/9-166, K.2026/369

The decision shows that, in the same incident, not all perpetrators and acts can be dealt with on the same assumption. The conditions of knowledge of persons meeting face to face for the first time must be distinguished from those of persons who had communicated beforehand. In addition, the elements of Articles 103 and 104 TCK and of the offences of deprivation of liberty must be assessed separately.

03.06.2026 – E.2023/9-471, K.2026/342

A late-registered birth, a conflicting radiological examination and statements about the victim's age were examined together. The fact that even institutional reports hold different views on the victim's age requires a separate inquiry into the perpetrator's knowledge and mistake. Text of the decision

06.05.2026 – E.2025/9-541, K.2026/282

The education, social circle, cognitive development and age difference of the child pushed into crime (suça sürüklenen çocuk) gained significance in the specific case. That the perpetrator is also a child is not a ground for automatic acquittal; it is an element that cannot be disregarded in the specific assessment of mistake. Text of the decision

Decisions rejecting a mistake: why the evidence as a whole is decisive

24.06.2026 – E.2025/9-98, K.2026/425

The whole of the victim's conversations, statements indicating that she or he was a child, and the defendant's knowledge of the surroundings were assessed together. A statement in one conversation giving an older age is not decisive on its own in the face of clear indications of a young age in other records. Text of the decision

24.06.2026 – E.2025/9-367, K.2026/417

Long-standing and intensive contact, familiarity with the victim's social circle and time spent together were treated as findings that reduce the credibility of a mistake. This decision shows that a bare 'I did not know her or his age' defence is not sufficient.

03.06.2026 – E.2024/9-91, K.2026/341

The statement of the person who introduced the parties, school and grade information, the closeness of the parties and the contradictions in the defence supported the conclusion that the age was known. Text of the decision

15.04.2026 – E.2025/9-364, K.2026/238

What mattered was the difference between the defendant's account in the first stage, to the effect that he had noticed the victim was young, and his later defences about age. The material meaning of the change between the first statement and later defences must be explained, and a selective reading of the evidence must be avoided.

The duty to give a reasoned judgment: 03.06.2026 – E.2026/9-99, K.2026/346

A court's rejecting the mistake defence without discussing it, or by misreporting the content of a statement in the file, may be incompatible with the right to a reasoned judgment. What distinguishes this decision is that it does not say the mistake must be accepted; it says the court must examine the mistake on concrete evidence and with reasons that can be reviewed.

Articles 34 and 230 CMK and Article 141 of the Constitution

The court must explain why it accepted which piece of evidence and by which record it refuted which claim in the defence. A statement that merely repeats the outcome is not reasoning.

Breach of the duty to give reasons and review on appeal

For a claim of mistake about a material element to be examined on appeal (istinaf) and cassation appeal (temyiz), the first-instance court must set out its selection of evidence in a way that can be reviewed.

A separate category of offence: mistake about the victim's mental state in sexual assault

29.04.2026 – E.2025/9-430, K.2026/279

This decision should not be merged under the same heading as the child abuse decisions. It was examined in terms of whether the perpetrator knew the mental state of an adult victim, medical visibility, the parties' social closeness and the perpetrator's opportunity to know. The decision assessed the matter within the framework of Article 30/3 TCK. The victim's disability or mental state, the victim's capacity to consent and the perpetrator's mistake about that state must not be confused with one another.

Why is this decision included in this review?

It is needed to show that the same theory of mistake can be applied to different offences against sexual inviolability; however, the elements of Article 102 and Article 103 TCK must be explained separately.

11.02.2026 – E.2024/170, K.2026/88: a case in which online age information conflicted

This decision is an important comparative example showing that the membership age of an online platform and the age stated in direct correspondence between the persons may differ. A general acceptance of the age on a profile does not by itself remove the legal effect of specific age information that the person learned later. The assessment must be made on the perpetrator's actual state of knowledge on the date of the incident, the victim's statements and whether the perpetrator learned of those statements. The decision can be accessed under the reference E.2024/170, K.2026/88 of 11.02.2026. Accessible text of the decision.

Proof in the mistake defence, the presumption of innocence and protection of the victim

Correct application of the principle that doubt benefits the defendant

The defendant has no burden of proving innocence; for a conviction, the elements of the offence must be established with sufficient certainty. At the same time, not every abstract alternative possibility creates reasonable doubt in the face of concrete evidence.

The evidentiary value of the child's statement

The child's account must be examined as a whole, the harm that repeated questioning may cause must be prevented, and the limits of expert opinion must be observed. A victim's withdrawal of the complaint does not mean, as regards Article 103 TCK, that the case automatically lapses or that the act becomes lawful.

The authenticity of digital evidence

The integrity of social media messages, date and time information, account ownership, the fate of deleted records and questions of lawfulness under Article 134 CMK must be investigated. A screenshot alone may not show the entire communication history.

Forensic medical reports and the limits of expert opinion

Where bone age reports conflict with the population register, the method of the reports, the confidence interval and their adaptation to the date of the incident must be examined. An expert report is also not a magic piece of evidence that directly determines the defendant's state of mind at the time of the act.

A four-stage review model for practitioners

Stage one: Characterization of the offence and the legislation applicable on the date of the offence

First, the victim's age, the elements of the offence, any allegation of force, threat or deception, the type of act and the provisions in force on the date of the act must be established.

Stage two: The perpetrator's universe of knowledge

Messages before the act, face-to-face meetings, school and family information, social media and medical data, and the circumstances the perpetrator could have known at the time of the act must be identified.

Examining facts for and against with the same standard

The age statement presented by defence counsel and the school record or earlier conversations produced by the intervening party (katılan) must not be subjected to different or partial standards of proof. Why one record was given preference must be explained in the reasoning.

Stage three: Correct legal classification of the type of mistake

Articles 30/1, 30/2, 30/3 and 30/4 TCK must not be confused; the outcome of the judgment must be built directly on this classification.

Stage four: Outcome and reasoning

If the mistake is accepted, it must be explained for which element intent is removed; if it is rejected, which evidence refutes the defence; if a different characterization of the offence arises, which article will apply.

A comparative strategy for defence counsel and counsel for the intervening party

From the defence perspective

A mistake defence must be built not on general and conclusory statements, but on records documenting the conditions of knowledge before the incident and on accounts that corroborate one another. All the data needed for the legal acceptance of the mistake must be identified from the investigation stage onward.

From the perspective of the intervening party (katılan)

Age information supporting rejection of the mistake, a long-standing acquaintance, school and family circle information, contradictory defences and digital conversations must be assessed as a whole. A claim that a false statement was made about the child's age does not automatically eliminate the allegation of abuse.

The court's task

The court must discuss all the evidence of both sides by the same standard and avoid incomplete investigation, selective evaluation of evidence and formulaic reasoning.

Age thresholds, consent and changing the legal characterization of the offence

The special consequence for children who have not completed twelve

The special lower-limit provisions laid down in Article 103/1 TCK for a victim who has not completed twelve make it necessary to determine which criminal-law element the victim's age affects. This age threshold must not be confused with the fifteen-year threshold. Penalty limits that entered into force later cannot be applied automatically without applying the statutory text in force on the date of the act and assessing the more favourable law. Whether claims about the perpetrator's age matter under Article 30/1 or Article 30/2 TCK must be reasoned according to the characterization of the offence.

The legal function of consent in a victim under fifteen

Under Article 103/1-a TCK, the allegation that the child responded positively to the sexual conduct does not on that ground prevent the offence from being committed. By contrast, the perpetrator's mistaken knowledge about the victim's age can be examined as to the intent element of the offence, independently of the consent claim. Assessments of the victim's account or appearance should be addressed not to place responsibility on the child, but to prove the legal elements.

In the fifteen-to-eighteen age group, Article 103 and Article 104 TCK must be distinguished

For a child who has completed fifteen but not eighteen, force, threat, deception or other causes affecting the will matter under the relevant option of Article 103 TCK; under Article 104 TCK, the act of intercourse as defined by law and the complaint condition matter. Not every sexual act falls within Article 104 TCK; the definition of the act and the special qualified forms in that article must be taken into account. Where a mistake is accepted, it must be investigated whether a different characterization of the offence arises; reasoning that treats the consequence of the mistake as identical for every defendant and every act must be avoided.

The basic form of Article 104 TCK, dependent on complaint

The basic form in the first paragraph of Article 104 depends on a complaint. However, not all of the special forms added to the article are subject to the same complaint regime. This distinction may also affect the procedural consequence of moving to another characterization of the offence when a mistake is accepted.

Special forms independent of the complaint condition

The special relationships and the care or supervision links provided for in Article 104/2–3 TCK are assessed separately; the complaint condition for the basic form does not apply to them automatically.

Mistake about age eighteen and about an adult victim's mental state

Reaching the age of eighteen may end the application of the age thresholds for sexual abuse of children; however, the elements of sexual assault, the legal validity of consent and the victim's capacity to perceive and resist are addressed separately. Decision No. 2026/279 of the Criminal General Assembly is not a copy of an age-mistake decision; it dwells on a different type of mistake, concerning whether the perpetrator knew the victim's mental state.

The difference between raising a mistake defence and the burden of proof

Defence counsel's producing documents does not mean the burden of proof shifts to the defendant

In a claim of mistake about age, communication records, witnesses and other facts may explain the defence. In criminal proceedings, however, the burden of proving the elements of the offence cannot be transferred to the defendant because a defence has been raised. A defendant cannot be convicted because he has been unable to prove conclusively that he did not know the age; reasoning must be built on the evidence available for accepting or rejecting the mistake. This rule does not prevent the court from assessing evidence against the defendant where the defence is abstract and contradictory.

Doubt does not always concern the same fact

Doubt about the victim's actual age and doubt about whether the perpetrator knew the age are different problems. Whether the act took place, whether force was present and when a person learned specific information are investigated separately. Doubt about one element is not carried over automatically to the others.

Giving reasons for evidence for and against together

A court cannot ignore the older-age statement in the same correspondence while drawing from the perpetrator's earlier messages a finding that he knew the age. Conversely, it is equally wrong to disregard other concrete warnings by relying only on the profile age. Proof is not a matter of one selected screenshot, but of assessing the flow of information on the date of the incident as a whole.

Protecting the child victim, the procedure for taking statements and the reliability of evidence

Hearing with an expert under Article 236 CMK

Article 236 CMK contains protective rules on hearing child victims, the necessary expert support and, in some cases, taking statements in a special setting. Of particular importance is the special procedure under which, for offences within Article 103/2 TCK, the statements of child victims at the investigation stage are taken by an expert at designated centres under the supervision of the public prosecutor (Cumhuriyet savcısı). Ministry of Justice legislation record.

Repeated questioning and the risk of secondary victimization

Questioning a child victim again unnecessarily may be harmful both for protecting the child and for obtaining sound evidence. The cases in which it is necessary in order to establish the material truth are separately addressed by law. The defence's rights to put questions and to discuss contradictions must be exercised through procedures compatible with protecting the child.

Protecting the best interests of the child and the presumption of innocence together

The protection of the child cannot be used as a ground for automatically rejecting a claim of mistake about a material element; equally, a mistake-about-age defence cannot be used to devalue the victim's account. The principle to be applied is to secure together both safe evidence gathering that protects the victim's dignity and private life, and an individualized and reasoned judgment concerning the defendant.

Mistake and individualized assessment for a child pushed into crime

Why does the perpetrator's being a child matter in assessing fault and mistake?

The age of the child pushed into crime (suça sürüklenen çocuk), his or her capacity to understand and will, level of education, the age difference between the parties and the conditions under which age information was learned are considered together. These elements played a decisive role in Decision No. 2026/282 of the Criminal General Assembly. For a child perpetrator, a social inquiry and information on development do not by themselves create an automatic presumption of mistake because of limited education; they can help to assess how accessible the concrete information was.

The scope of the social inquiry report

The report can be used to explain the child's social and cognitive circumstances. However, it is not in itself direct proof of the level of knowledge at the time of the act; it must be assessed together with statements, objective records and pre-incident contact.

Law, evidence and stages of recourse by date of the offence

The date of the act must be distinguished from the date of prosecution and of judgment

Assessment of the more favourable law under Article 7 TCK concerns changed provisions on penalties and elements of offences. The victim's age on the day of the incident, the legal thresholds on the date of the act and later amended legislation must not be confused.

Investigation and reasoning in criminal procedure

Communication records, the procedure for taking the victim's statement, the population record and the birth certificate at the investigation stage, and the discussion of all the evidence at the hearing and reasoning compliant with Article 230 CMK at the prosecution stage complement one another. On appeal and cassation, the focus should be not only on the outcome of the decision but on which evidence the mistake defence was met with, or which evidence was not discussed. The time limit, the authority and the scope of the appeal are calculated according to the provision in force on the date of the specific decision.

Unlawful or decontextualized digital records

How digital data was obtained, its integrity, account ownership and its accessibility on the date of the offence are examined separately. Whether records obtained unlawfully can be used as a basis for the judgment is assessed separately under the CMK and the Constitution; the method of obtaining a record is not disregarded merely because its content is considered useful.

Why Court of Cassation decisions reach different results: a comparative matrix of outcomes

This table does not attach an automatic outcome of acquittal or conviction to any set of facts. The differences between the decisions may stem not only from a divergence of legal opinion, but also from the evidential structure, the facts and the procedural stage of each file.

Conclusion

The application of the mistake provisions in offences against sexual inviolability is not about creating an exception to the protection of the child; it is about determining, in the specific case, the limits of fault-based criminal liability. On one side, objective records of age and vulnerability must be protected; on the other, whether the perpetrator knew the material elements of the offence must be assessed on evidence beyond any reasonable doubt. The 2026 decisions of the Criminal General Assembly show that a mistake defence can neither be accepted nor rejected in advance. The legitimacy of a judicial decision lies precisely in its ability to tie this distinction to reasoning that can be reviewed.

Frequently Asked Questions

What is a mistake about age in a sexual abuse offence?

It is the perpetrator's not knowing, or being mistaken about, the victim's actual age, which is a constituent element of the offence; the legal consequence is determined according to all the circumstances of the specific case.

Does the victim's presenting herself or himself as 18 automatically lead to acquittal?

No. Other messages, the acquaintance, physical and cognitive characteristics and the perpetrator's actual level of knowledge are assessed together.

Does physical appearance alone prove a mistake?

No. It may be a piece of data that can be considered together with other evidence.

Does the consent of a victim under fifteen have any effect?

Under the age groups in Article 103 TCK, the criminal-law effect of consent is limited; a mistake about age is a separate examination of intent.

Are Article 30/1 and Article 30/4 TCK the same?

No. The first concerns knowledge of a material element; the fourth concerns an unavoidable mistake about whether the act is wrongful.

Does a mistake about age remove force or threat?

No. They are different elements and require a separate assessment of evidence.

Does the victim's withdrawal of the complaint cause the case to lapse?

As regards Article 103 TCK, as a rule it does not produce an automatic consequence; the specific offence and the conditions of investigation are assessed separately.

If a mistake is accepted, must there always be acquittal of all offences?

No. The elements of Article 104 TCK or other independent offences may come into play; the outcome varies with the act.

How is a false birth record assessed?

Population and health records, the date of registration and conflicts between reports are clarified through expert examination.

What is the particular importance of Court of Cassation Decision No. 2026/346?

It stresses that a court's reasoning on the mistake defence must be relevant, sufficient and consistent with the file.

Does it change the outcome if the perpetrator is also a child?

The regime for a child pushed into crime (suça sürüklenen çocuk) and the concrete conditions of knowledge may affect the assessment; it does not secure automatic acquittal.

Is the date of birth on social media accounts reliable evidence?

It is not conclusive on its own; it must be verified through account ownership, change history and other records.

How are conflicting forensic medical reports resolved?

The method, date and field of expertise of the report are reviewed; a new expert assessment is obtained if necessary.

What happens if the court never discusses the mistake about age?

If the defence could affect the outcome, lack of reasoning or incomplete examination may become significant on appeal.

Does a mistake about an adult victim's mental state also fall under Article 30 TCK?

Depending on the conditions, yes; Decision No. 2026/279 concerns this different problem and should not be reduced to the same rules as child abuse.

If the victim is under twelve, is a mistake about age still examined separately?

Yes. First it is determined which element or sanction consequence the twelve-year threshold affects in the specific offence; then the conditions of the relevant type of mistake are assessed on the evidence available on the date of the incident.

Is a social media profile showing an older age conclusive evidence on its own?

No. Whether the perpetrator saw that profile and whether he later received other information about the actual age are decisive.

Is it always necessary to hear the child victim again in court?

No. Article 236 CMK and the special interview procedures are intended to prevent unnecessary repetition. In cases of necessity, safeguards for the defence and protection of the victim are weighed together.

Must the defendant prove the claim of mistake?

The burden of proving the elements of the offence against the defendant cannot be transferred to the defendant. The concrete grounds of the mistake defence and the contrary evidence are examined together.

Is a complaint required in every case under Article 104 TCK?

No. The complaint regime is not the same for the basic form and for the special forms regulated in the article.

Why is Criminal General Assembly Decision No. 2026/88 important?

It provides an additional comparison showing the difference between the age on an online profile and the information learned in direct communication. The specific legal outcome of the decision and any dissenting opinion should be read together with the full text.

Sources and legal bases

1. Turkish Penal Code No. 5237 (TCK), Articles 30, 102, 103, 104 and 109 — Mevzuat Bilgi Sistemi
2. Code of Criminal Procedure No. 5271 (CMK), Articles 34, 134, 223, 230 and 307 — Mevzuat Bilgi Sistemi
3. Criminal General Assembly of the Court of Cassation (Yargıtay Ceza Genel Kurulu), 01.07.2026, E.2025/9-418, K.2026/442 — Accessible text of the decision
4. Criminal General Assembly of the Court of Cassation, 24.06.2026, E.2025/9-98, K.2026/425 — Accessible text of the decision
5. Criminal General Assembly of the Court of Cassation, 03.06.2026, E.2023/9-471, K.2026/342 — Accessible text of the decision
6. Criminal General Assembly of the Court of Cassation, 03.06.2026, E.2024/9-91, K.2026/341 — Accessible text of the decision
7. Criminal General Assembly of the Court of Cassation, 06.05.2026, E.2025/9-541, K.2026/282 — Accessible text of the decision
8. Criminal General Assembly of the Court of Cassation, 11.02.2026, E.2024/170, K.2026/88 — Accessible text of the decision
9. Ministry of Justice, Article 236 CMK — UYAP Legislation and Case Law Programme
10. Ministry of Justice Victim Information, Child Monitoring Centres (Çocuk İzlem Merkezleri) — Official information