Author
Talip Turcan
Type
Book
Language
ara,tur
Digital
Yes
Manuscript
No
Library
Royal Danish Library
Library Asset ID
EISSN: 2757-6949, DOI: 10.14395/hid.1250649
Record ID
cdi_doaj_primary_oai_doaj_org_article_186b5a68cf4542afb1504a788ede0213
Library Location
EBSCOhost Academic Search Complete
Notes
The change that has occurred in the crime of qualified sexual assault throughout the historical process can be followed through the definition of the crime and the legal interest intended to be protected by the relevant criminal rule. It is enough to take a look at the old and current Turkish Penal Codes to see the change at this stage. When the approach of Islamic criminal law regarding the crime of qualified sexual assault is compared with today's criminal thought, it becomes clear how striking the change is. The study aims to show comparatively how the crime of qualified sexual assault is defined in Islamic criminal law and what legal benefit is pursued with it. This will also be an example of how the phenomenon of change occurs in criminal thought. In Islamic criminal law, the terms al-ikrâh ale'z-zinâ, al-istikrâh ale'z-zinâ, ez-zinâ kerhen or al-iğtisâb are most commonly used to express the crime of qualified sexual assault (rape/rape). The terminology regarding the crime of qualified sexual assault seems to be influenced by the fact that the crime is considered within the scope of the crime of adultery and, by some jurists, within the scope of the crime of brigandage. This situation has prevented the development of a separate term to directly express the crime of qualified sexual assault in Islamic criminal law. In Islam, sexual intercourse between a man and a woman is not considered legitimate unless there is a marriage or property bond. However, the existence of suspicion of marriage or ownership reduces the hadd penalty, even if sexual intercourse constitutes a crime. Homosexual relations are completely prohibited in Islam, with no exceptions. The perception of sexual freedom in today's criminal law is incompatible with the principle of Islamic law that 'the main thing in sexual relations is not forgiveness, but pleasure'. In Islamic criminal law, the crime of qualified sexual assault is a crime that can only be committed by men. The act of sexual intercourse performed by a woman without the consent of the man is considered within the scope of the crime of adultery in Islamic criminal law, not as a sexual assault against a man; It is discussed whether the act constitutes a crime of adultery for the woman and whether the adultery limit should be applied to the woman. On the other hand, at the current stage of the idea of punishment, for example, according to the Turkish Penal Code, the crime of qualified sexual assault is a crime that can be committed by men or women. There is no doubt that the idea that women can be the perpetrators of qualified sexual assault is a newly reached stage after a long historical process. The victim of the crime of qualified sexual assault, which can only be committed by men in Islamic criminal law, can be both men and women. Although sexual intercourse with minors who are not sexually attractive (mustehat) is of course a crime, it is not considered the crime of adultery by definition by the majority. Therefore, the view that hadd will not be applied to the perpetrator has been adopted. The nature of the crime of sexual intercourse with the dead and animals is also controversial in the classical Islamic criminal law doctrine. The material element of the crime of sexual assault consists of a sexual act that occurs without the consent of the victim. Crime; It may occur through force, threat or any other means that leaves the victim unable to demonstrate willpower and resist the act of sexual assault. In Islamic criminal law, in order to distinguish the crime of qualified sexual assault from the crime of adultery, either the terms ikrâh/İstirâh/reluctance, together with the word zinâ, or the term iğtisâb, which means obtaining by force, are used to indicate the state of force, threat or necessity, depending on the way the crime is committed. In the classical doctrine of Islamic criminal law, the act of qualified sexual assault is not defined as an independent crime; it is either the crime of adultery or the crime of hirâbe. classified under. The fact that the crime of qualified sexual assault cannot be defined as an independent crime in the classical doctrine has led to different approaches to the sanctions attached to the crime and how the crime will be considered proven. In Ottoman criminal law, the crime of qualified sexual assault was regulated mostly by customary legislation.
Görüntüle
Hitit İlahiyat Dergisi, 2023-06, Vol.22 (1), p.47-72
