In many countries, when a thirteen-year-old girl is sold as a child prostitute, courts presume the girl has been raped. The Supreme Court of Appeals in Turkey recently found otherwise. Two women, who purported to be thirteen-year-old N.Ç.’s employers at a local factory in the province of Mardin, sold her as a child prostitute to over twenty-six men for a period of seven months. Both women have been sentenced to nine years in prison, but the twenty-six men, including teachers, civil servants, and village elders, have received reduced sentences ranging from one to six years. The men benefited from a legal technicality, namely the old Turkish penal code that was in effect at the time of the rapes included a provision allowing reduced sentences in cases where the minor consented to the sexual activity. The lowest court applied the old code, ruled that the girl consented to the intercourse, and sentenced each of the men to a minimum of five years in prison for statutory rape. The court also agreed to lower the sentences of some defendants by between two and ten months based on good behavior during the trial. Upon appeal, the Supreme Court upheld the lower court’s ruling, and an official of the Court defended its application of the old code as an “undebatable rule of law.” The reduced sentences for these perpetrators are alarmingly indicative of the state of children’s rights in Turkey.
The new code leaves no room for consideration of consent by a minor to sexual intercourse (the age for sexual consent in Turkey is fifteen). As such, the new law seems to be a legal victory for children’s rights. However, the alarming fact of N.Ç.’s case is not that the courts applied the old penal code. Courts are often precluded from retroactively applying new laws, which is generally just and fair for defendants. The alarming fact of N.Ç.’s case is that all of the judges on Turkey’s Supreme Court ruled that N.Ç. consented to sexual intercourse with at least twenty-six men. In other words, the Supreme Court ruled that a thirteen-year-old girl had the capacity to consent to child prostitution. If a child can legally consent to prostitution, then child prostitution in itself is not a violation of that child’s human rights unless it is against the child’s will. If a court is willing to rule that a thirteen-year-old girl such as N.Ç. engaged in the intercourse willingly, then what child-victim of sexual violence stands a chance of obtaining justice in Turkey? Because the Supreme Court is Turkey’s highest court, N.Ç.’s only alternative for recourse is through an international court of human rights. Which begs the question: does international human rights law permit the assumption of consent by a minor to prostitution?
Article 34 of the UN Convention on the Rights of the Child requires that all State Parties undertake to protect children from all forms of sexual exploitation and abuse by taking appropriate national, bilateral, and multilateral measures to prevent child prostitution. Article 3 of the Optional Protocol to the UN Convention on the Rights of the Child requires that all participating State Parties make sexual exploitation of a child a criminal offense, and take measures to establish the liability of legal persons for committing an offense of child prostitution. Neither document mentions or allows consent by a child to rape or prostitution. Turkey ratified both the Convention and the Optional Protocol in 1995 and 2002 respectively.
The conventions imply that there is no basis in international human rights law for the assumption of consent by a minor to acts of sexual violence, and many people in Turkey seem to agree. Human rights activists protested the Supreme Court’s ruling outside the Palace of Justice in Istanbul on Friday, November 4, 2011. The Family and Social Policies Minister of Turkey, Fatma Şahin, called the sentence “unacceptable and worrying;” the President of Turkey himself, Abdullah Gul, said the Supreme Court’s ruling made him “deeply uncomfortable;” and Umit Kocasakal, head of Istanbul’s bar association, said the Supreme Court’s decision was “bloodcurdling.” President Gul further stated his hope that a different outcome will be achieved that will “comfort the public conscience.”
With so much public outrage at the decision, and a general presumption that the Court could have ruled differently, why didn’t they? Fevzi Elmas, the head of the Supreme Court’s 14th Criminal Office, told the Anatolian Agency: “The evaluations of the court were correct. We made a decision.” Mr. Elmas then added ambiguously that “this decision is not definite, it is also not possible for this decision to be changed by making noise.” But Firat Söyle, an attorney, indicated that N.Ç.’s case is not unique. She stated, “many similar rape cases in which the victims are younger than 15 result in low sentences because the judges rule that the [girls] consented.”
Regardless of the reason for the Supreme Court’s decision, N.Ç.’s case illuminates an unfortunate and harsh reality: if a society’s legal minds and judicial authorities do not work for the achievement of human rights, violators get off unscathed and the enforcement of human rights principles is weakened, despite the support of activists, citizens, or even politicians. The achievement of human rights principles must come through the law, at the hands of those who administer it. Without the support of a society’s judicial authorities, victims of human rights violations have grim prospects for justice and restitution.