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“The Constitutional Court affirms [lesbian] sexual relation visuals as ‘perversion’”

[Turkey’s] Constitutional Court decided against the repeal of the law concerning “unnatural sexual behavior.” Homosexuality is still seen as a perversion.

Source: Diken, “Anayasa Mahkemesi, eşcinsel ilişki görüntülerini ‘sapkınlık’ olarak onadı” (“The Constitutional Court affirms [lesbian] sexual relation visuals as ‘perversion’”), 18 April 2015, http://www.diken.com.tr/anayasa-mahkemesi-escinsel-iliski-goruntulerini-sapkinlik-olarak-onadi/

In Aydın, a defendant, who was charged with and filed an objection against the Article 226 [1] of the Turkish Penal Code, which equates visuals of homosexual sexual relations with visuals of rape, sadomasochism, sexual relations with animals, and sexual relations with corpses. The Criminal Court judge, who agreed with the objection against the use of the term “unnatural way” in the article, forwarded the case to the Constitutional Court for the article’s cancellation.

According to the news report by Sözcü, the Constitutional Court denied the request with a majority vote. The Court opinion stated that the punishments prescribed by the article in question refers not to personal circumstances but to the distribution of pornographic images that display different “sexual preferences”[2].

Two associate justices, Serruh Kaleli and Serdar Özgüldür, wrote their dissent to the opinion, stating that “Such relations are within the framework of personal freedoms. ECtHR [European Court of Human Rights] decisions too follow this perspective.”

Kalel and Özgüldür emphasized that, excluding incest, circumstances, which both do not involve violence and are consensual, are protected by the notion of personal privacy and constitute an issue of freedom. The justices commented that “In this respect, the [penal code] article that is subject to the request for dismissal is clearly in violation of the principle of the constitutional state.”

Article 226 of The Turkish Penal Code[1] states:

The person who produces, imports, distributes, sells, transports, stores, shows, or possesses products that include textual, audio, or visual products that incorporate violent sexual behaviors or sexual behaviors that involve animals, corpses, or unnatural ways, are punished with one to four years of prison and up to five thousand days (approximately 100,000TL [$37,400]) of judicial fine.”

[1] The full text of the article in question, which outlines punishments for the possession and distribution of “obscene” products, is provided below. The Turkish Penal Code does not provide a definition of “obscenity.” -Trans.

“Türk Ceza Kanunu [Kabul Tarihi: 26.9.2004]” (“The Turkish Penal Code [as of 26 September 2004]”), Grand National Assembly of Turkey, http://www.tbmm.gov.tr/kanunlar/k5237.html

Obscenity

ARTICLE 226. – (1) The person

a) who gives, or shows, reads, makes read, or makes listen to a child the content of products that include obscene images, texts, or audio,

b) who shows in public, or displays in places where children may access or see, or displays, reads, makes read, speaks, or makes speak in a visible manner the content of these,

c) who distributes these products for sale or rental in a way that allows one to become acquainted with their content,

d) who distributes for sale, sells, or rents these products in other shopping places than where they have been assigned to,

e) who gives or distributes these products free of charge as part of or as gift along with other products or services,

f) who advertises these products,

are punished by two to six years of prison and judicial fine.

(2) The person who publishes or mediate the publication of obscene images, texts, or audio through the media is punished by 6 months to three years of prison and up to five thousand days of judicial fine.

(3) The person who uses children in the production of products that include obscene images, texts, or audio is punished by five to ten years of prison and up to five thousand days of judicial fine. The person who imports, reproduce, distribute for sale, sells, transports, stores, exports, possess, or provides for others’ use is punished by two to five years of prison and up to five thousand days of judicial fine.

(4) The person who produces, imports, distributes, sells, transports, stores, shows, or possesses products that include textual, audio, or visuals that incorporate violent sexual behaviors or sexual behaviors that involve animals, corpses, or unnatural ways, are punished with one to four years of prison and up to five thousand days of judicial fine.

(5) The person who publishes or mediates the publications in the media and who enables for children to see, listen to, or read the content of the products outlined in paragraphs three and four [above] is punished with six to ten years of prison and up to five thousand days of judicial fine.

(6) Specific security measures are to be taken against legal persons [e.g. corporations, in contrast to “real persons,” e.g. individuals] due to these offenses.

(7) The provisions of this article cannot be exercised against scientific works and, with the exception of the third paragraph and with the condition that children’s access to them is prevented, to works with artistic and literary value.

[2] It is common in Turkey for heterosexist authors / speakers to express their beliefs through the intentional use of “cinsel tercih” (“sexual preference”) instead of “cinsel yönelim” (“sexual orientation”).

“Flash lesbian decision by the Constitutional Court”

The request to cancel the article of The Turkish Penal Code (TPC), which prescribes punishment against distributors of pornographic movies that involve “unnatural ways of sexual relationship such as anal, oral, gay, lesbian,” was discussed [in court].

Source: Sözcü, “AYM’den flaş lezbiyen kararı”, (“Flash lesbian decision by the Constitutional Court”), 18 April 2015, http://www.sozcu.com.tr/2015/gundem/aymden-flas-lezbiyen-karari-807630

The [Constitutional] Court denied the cancellation request with majority rule. However, the justices who argued that the Court’s opinion was vague and who dissented to it argued stated that “Such relations are within the framework of personal freedoms. ECtHR [European Court of Human Rights] decisions too follow this perspective.”

Charges on the basis of TPC Article 226 [see footnote 1] were brought against a person who was caught selling pornographic movies that included lesbian sexual relation. As part of the processions, Aydın’s 3rd Criminal Court appealed to the Constitutional Court for the cancellation of the term “unnatural ways” used in the article. The [Criminal] Court argued that this term was open to interpretation and that consensual sexual relations in “unnatural ways” cannot be considered an offense.

However, the Constitutional Court denied the request with a majority vote. The Court’s opinion emphasized that the punishments prescribed by the article in question refers not to personal circumstances but to the distribution of pornographic images that display different sexual preferences. Justices Serruh Kaleli and Serdar Özgüldür, who dissented to the opinion, said:

“The term ‘unnatural ways’ is wholly indeterminate. ECtHR decisions have affirmed that, excluding incest, circumstances that do not involve force, violence and that depend on [the presence of mutual] consent are in fact protected by the principle of personal privacy and that this is an issue of freedom. In this respect, the rule that is subject to the cancellation request is clearly against the principle of the constitutional state. Furthermore, the fact that it violates the principle of personal privacy is self-evident.”

 


[1] The full text of the article in question, which outlines punishments for the possession and distribution of “obscene” products, is provided below. The Turkish Penal Code does not provide a definition of “obscenity.” -Trans.

“Türk Ceza Kanunu [Kabul Tarihi: 26.9.2004]” (“The Turkish Penal Code [as of 26 September 2004]”), Grand National Assembly of Turkey, http://www.tbmm.gov.tr/kanunlar/k5237.html

Obscenity

ARTICLE 226. – (1) The person

a) who gives, or shows, reads, makes read, or makes listen to a child the content of products that include obscene images, texts, or audio,

b) who shows in public, or displays in places where children may access or see, or displays, reads, makes read, speaks, or makes speak in a visible manner the content of these,

c) who distributes these products for sale or rental in a way that allows one to become acquainted with their content,

d) who distributes for sale, sells, or rents these products in other shopping places than where they have been assigned to,

e) who gives or distributes these products free of charge as part of or as gift along with other products or services,

f) who advertises these products,

are punished by two to six years of prison and judicial fine.

(2) The person who publishes or mediate the publication of obscene images, texts, or audio through the media is punished by 6 months to three years of prison and up to five thousand days of judicial fine.

(3) The person who uses children in the production of products that include obscene images, texts, or audio is punished by five to ten years of prison and up to five thousand days of judicial fine. The person who imports, reproduce, distribute for sale, sells, transports, stores, exports, possess, or provides for others’ use is punished by two to five years of prison and up to five thousand days of judicial fine.

(4) The person who produces, imports, distributes, sells, transports, stores, shows, or possesses products that include textual, audio, or visuals that incorporate violent sexual behaviors or sexual behaviors that involve animals, corpses, or unnatural ways, are punished with one to four years of prison and up to five thousand days of judicial fine.

(5) The person who publishes or mediates the publications in the media and who enables for children to see, listen to, or read the content of the products outlined in paragraphs three and four [above] is punished with six to ten years of prison and up to five thousand days of judicial fine.

(6) Specific security measures are to be taken against legal persons [e.g. corporations, in contrast to “real persons,” e.g. individuals] due to these offenses.

(7) The provisions of this article cannot be exercised against scientific works and, with the exception of the third paragraph and with the condition that children’s access to them is prevented, to works with artistic and literary value.

You can’t call it a reform if the Penal Code excludes the LGBTI

Source: Yıldız Tar. 2014. “LGBTİ’siz TCK Düzenlemesine Reform mu Denir?” (“You can’t call it a reform if the Penal Code excludes the LGBTI”). Kaos GL. June 6, 2014. Accessed June 6, 2014. http://kaosgl.org/sayfa.php?id=16789

 

Attorney Hülya Gülbahar evaluated the proposed changes to the Turkish Penal Code apropos sexual assault: “This is social engineering. LGBTIs are intentionally being forgotten, ignored. How can one call it a reform while excluding LGBTIs?”

The blanket bill* of changes to the sections of the Turkish Penal Code concerning sexual assault against women and children have been debated quite a bit and are still being discussed. Women’s rights organizations stated that the proposed changes will ease punishment for a number of crimes and will set free many rapists and abusers.

Flirt is becoming a crime

One of the problems under debate is the section of the proposed changes that increases prison sentences for relations between youths aged between 15 and 18. Women’s rights organizations have emphasized that this proposal “incorporates the act of flirting into the definition of a crime.”

The organizations stated that youth flirting and “underage and forced marriages” are two separate issues. “Neither the society nor the laws should be introduced to such a conceptual confusion on this issue. It is a shared responsibility for all of us to protect children from abuse; forbidding youth from expressing sexuality is a conservative policy that would produce new social rights violations.”

In the wake of the debates and the objections to the administration’s attempt at “conservatization” and “social engineering,” Attorney Hülya Gülbahar evaluated the proposal from an LGBTI perspective.

How can one call it a reform while excluding LGBTIs?”

Gülbahar, who noted that while the administration is discoursing about protecting women and children, it is actually enacting legislation in the opposite path, stated:

“Yet again, we are debating the Turkish Penal Code. The administration talks about ‘protecting’ women and children but there is no mention of crimes committed against LGBTI individuals! Yet, the Turkish Penal Code defines and regulates crimes. It is necessary for individuals to be protected from crimes while not being subjected to discriminatory practices. Yet, in this package of so-called “reformation,” there exists not a single word regarding LGBTIs. Just a few days ago,a defendant was rewarded with “provocation” and “good behavior” in the case of a trans murder. How can one call a proposed change in laws “reform”  when it does not incorporate the rights of LGBTI individuals, whose humans rights, including that of freely walking down the street, are being violated systematically?”

The same tune since 2005!

Gülbahar noted how sexual orientation and gender identity were excluded from the 2005 anti-discrimination law proposal:

“We experienced the same debate with the ruling party, the AKP, in 2005. We succeeded in adding an amendment against discrimination against LGBTI individuals to the proposed legal changes after intense struggle and extensive effort. But they removed this amendment from the final revision of that proposal… And so, not only were LGBTIs expunged from protection under the Turkish Penal Code, but also the society received a message that legitimized all forms of discrimination and violence against LGBTI individuals.”

LGBTIs are intentionally disregarded”

Gülbahar, who noted that LGBTIs are intentionally being disregarded, evaluated these practices as the product of a certain social engineering project and added:

“They are yet again effacing the topic in the package of Turkish Penal Code changes being debated in the parliament. This is because the desire is for the continuance of the ongoing discrimination and violence. Indeed, regarding sexual crimes, there exists in this proposal an open ended medicalizing emphasis of “illness” that may lead to surgical castration. With regards to theft and drug-related charges, the punishments are extremely heavy. These are the product of a social engineering project… It is also a necessity of such social engineering to maintain silence on all sorts of identity-based crimes against LGBTI individuals. An intentional forgetfulness/ disregard… A dangerous silence…”

 


Translator’s Note:

  • “Torba yasa tasarısı / değişikliği,” here translated as “blanket bill of changes,” is a type of proposed changes to laws and regulations on a range of diverse areas, rather than a specific legal issue. In Turkey, as in abroad, this political strategy is employed often when the proposed changes to law include controversial items that would not be approved by themselves or when some changes, often buried into the “bag of changes,” take away certain rights from citizens or enable governmental and/or corporate corruption, while others, often emphasized during the promotion of the “bag,” provide changes perceived to be positive.