Elif Ceylan Özsoy, “Eşcinsel İlişki Teklif Etmek “Haksız Bir Fiil” midir?” (“Is the Proposition of Homosexual Intercourse an Unjust Provocation?”), bianet, 17 March 2009, http://bianet.org/biamag/bianet/113198-escinsel-iliski-teklif-etmek-haksiz-bir-fiil-midir

The judiciary in Turkey is, unfortunately, biased against homosexual and transsexual people who have been victimized or murdered. It is a position that essentially blames them and punishes them for existing and constituting an identity.

What hurts our feelings of justice in homosexual and transsexual murders is the fact that the perpetrators benefit from unjust provocation reductions. The defense, memorized by perpetrators, “he proposed homosexual intercourse, I lost it and killed him,” is typical; the court accepts this defense and gives a reduced sentence..

What are  the legal grounds to justify these reduced sentences? In this article, I will discuss the “Situations Affecting Crime” and the Unjust Provocation institution.

The Law “Shows Sympathy”

Unjust provocation has been classified under the heading of “Excusatory and Mitigating Causes.” The situations affecting crime take their origin from the Modern Penal Code consideration of not only the crime committed but also “the reasons that affect the motive of the crime, the character of the perpetrator, and the way in which the crime is committed.”

Aggravating circumstances are different from the foundations of the crime and do not influence the crime’s existence or non-existence. This means that the crime exists but the circumstances affecting the crime require that “the penalty be increased or reduced.”

For instance, A killing B cannot be evaluated in the same way as A killing B because “B beat him and insulted him.” In a way, fault is shared between the perpetrator and the victim; if the victim committed an unjust act like beating and insulting and therefore affecting the perpetrator to commit the crime, the perpetrator’s crime will be reduced in a certain ratio.

Situations affecting crime can be “aggravating or lessening reasons.” The determination of which acts constitute an aggravating and which constitute a lessening reason gives us information about that country’s legal understanding, social values, and ideology. For example, in our country, proposing homosexual intercourse is considered an unjust act and leads to penalty reductions. In another country, it is considered a “hate crime” caused by homophobia and leads to an increase in penalty.

Therefore, unjust provocation is one of the penalty reductions in Situations Affecting Crime in our country. Unfortunately, it has become a regular and standard practice in the murders of women and homosexuals.

Unjust Provocation is organized by Article 29 of the Turkish Penal Code.

Article 29- 1) A person committing an offense with affect of anger or asperity caused by the unjust act is sentenced to imprisonment from eighteen years to twenty-four years instead of aggravated life imprisonment, and to imprisonment from twelve years to eighteen years instead of life imprisonment. In other cases, the punishment is abated from one-fourth up to three thirds.

To simplify the requirements of unjust provocation:

• There must be an act that constitutes provocation

• This act that constitutes provocation must be an “unjust act”

• The unjust act must induce the feeling of grievous anger or violence in the perpetrator

• There must be a causal connection between the crime committed and the unjust act. (causality)

The application of unjust provocation is not possible if there is no unjust act by the murdered/victim. Therefore the key concept is “unjust act.”

It’s problematic whether you deduce or induce

So What is an Unjust Act?

The article is defined in its reasoning like this:

“The term unjust act means the behavior is not approved by the legal order. The article can be applied only if there is an act towards the person who committed the unjust act.”

What do legal dictionaries say?

Unjust act: A harmful act that is not allowed by the legal order.

So if we infer;

If the defendant who has been proposed homosexual intercourse benefits from the unjust provocation reduction;

Then;

Proposing homosexual intercourse is an unjust act.

If proposing homosexual intercourse is an unjust act,

Then proposing homosexual intercourse is a behavior that is not approved by the legal order.

And proposing homosexual intercourse is a harmful act that is not allowed by the legal order.

The Judiciary’s Witch Hunt

Even though homosexuality is not directly stated in the statutes, we see that the judiciary diligently uses it against lesbian, gay, bisexual, transvestite and transsexual (LGBTT) people.

I looked at the decisions of the Supreme Court of Appeals First, Second, Third, Fourth, and Eighth Penal Chamber as well as the General Assembly for Criminal Matters to see solid examples of the “unjust acts” on par with Homosexual Intercourse:

Extortion, noise under the influence of alcohol, insult, violating the immunity of domicile, breaking a house’s window, pushing, pushing off the bed or insulting one after being proposed sexual intercourse, wounding by stabbing, cursing loudly and kicking, assault with sticks, insulting on the phone, walking towards someone with a knife, cursing and insulting, restricting freedom and threatening, rape, beating and chasing someone with an iron bat, wounding with a knife, punching, holding a knife, bothering a daughter, bothering with anonymous phone calls, beating, cussing, hitting on someone’s wife or sister, throwing rocks, kidnapping the defendant’s daughter and restricting her freedom, beating, head-butting, chasing, breaking a work place’s windows, swearing, threatening by knife, starting a fight and slapping, blaming one for theft, physical assault, swearing and assaulting with a knife, adultery, violating the immunity of domicile…

Along with the acts above, “proposing homosexual intercourse,” as exemplified by the case of Baki Koşar and all other homosexual-transsexual murder cases, is considered an unjust act like “restricting freedom, beating, and assaulting with a knife.”

Local and high courts that deem the proposal of homosexual intercourse as an unjust act and significantly reduce the murderers’ penalties, ignore all material facts such as these commonalities: the victim and perpetrator meeting in a gay chat room or in a gay venue, the existence of a sexual communication, the existence of anger or hate beyond the act of killing with 20-30 stab wounds. This attitude makes us think that the Judiciary is on a “witch hunt” and protects perpetrators. To look at some specifics:

In the Baki Koşar Decision:

“(…) As explained above, the defendant did not intend to commit a crime when going to his house and went there upon the victim’s invitation to have sexual intercourse.” This sentence shows that the Court was aware of the sexual communication between the victim and the perpetrator. Nevertheless, the Court applied the unjust provocation reduction to the benefit of the perpetrator.

The result of this application is that the “defense” of “he proposed homosexual intercourse, I lost it and killed him” is now abused by perpetrators. For example, in a hate-motivated murder case based on homophobia in 2005, the perpetrator robbed a shop. The audacious claim in his defense was that he robbed the shop “under the grievous anger caused by the victim’s proposal of homosexual intercourse.”

Perpetrators are “relaxed” because of the Judiciary’s homophobic and transphobic decisions.

The last example from the judiciary’s decisions is a decision on “custom killings.” The Supreme Court of Appeals First Penal Chamber decided that the perpetrators in the custom killing of a woman should not benefit from the institution of Unjust Provocation. The decision emphasized that if they were to benefit from the reduction, this would suggest that custom “cannot be protected by law.” The relevant segment of the decision is as follows:

“The victim was living with the defendant without being married but like husband and wife. The victim ran away with the other victim at her own will. The defendants then decided that they would kill the girl and the person she eloped with by being motivated by custom. The girl’s father and the uncle’s son heard the situation and reinforced the decision of killing. Then the man who was living with the girl without being married killed both people. The act of murder has not been affected by unjust provocation but by the desire to continue a bad custom that cannot be protected by law. The petition to discuss provocation statutes were not accepted.”

Questions to the Supreme Court of Appeals

So let’s ask the Supreme Court of Appeals:

If custom is something that “cannot be protected by law,” can the anger and hate towards the offer of homosexual intercourse, or homophobia, be protected by law? Is this homophobia “a good act and emotion” that it is protected?

The judiciary in Turkey is, unfortunately, biased against homosexual and transsexual people who have been victimized or murdered. It is a position that essentially blames them and punishes them for existing and constituting an identity. A gay individual’s attempt to live, even when his sexual orientation is hidden, is considered an unjust act and defined as “a harmful act that is not allowed by the legal order, a behavior the legal order does not approve.” In Turkey, it is not possible to say that LGBTT people are equal with other citizens.

Our concern is with the article on equality to really be equal

A few weeks ago, the Parliamentary Constitutional Commission President Burhan Kuzu said, “their concern is different.” This is tragicomic because “they,” meaning LGBTT people, are still concerned with trying to protect their right to life- the most basic right.

This situation, the practices and condition of our country, reveals that we have a significantly different mentality than civilized countries.

In conclusion, Turkey needs to take urgent steps to ensure LGBTT people’s rights. The inclusion of “sexual orientation and gender identity” to the Constitution’s Article 10 on equality is necessary. If this is done, then Turkey would show its sincerity in transforming Turkey into a safe and fair country for LGBTT people.

* Elif Ceylan Özsoy, lawyer, Black Pink Triangle Izmir Association