Yakin Ertürk*

 

This article was originally published by OpenDemocracy

 

Recent law reform initiatives on sexual crimes against children in Turkey reveal the growing danger for women and girls, and the need to interrogate the myths and biases underlying the “our culture” discourse.

 

Protest banner: “Withdraw the law clearing sexual assault”
Midnight of 17 November 2016, six MPs of the ruling Justice and Development Party (AKP) tabled a surprise motion that would amount to amnesty for perpetrators of sexual abuse of minors, who committed their crime before 16 November 2016 – if the victim marries the offender, and if the act is committed without “force, threat, or any other restriction on consent.  The motion was proposed as part of a draft bill to amend Article 103 of the Turkish Penal Code on sexual assault of children. With the votes of AKP MPs, the motion was included in the reform package as a “temporary” clause.
Protestors from all walks of life, particularly women’s organizations, went to the streets demanding its withdrawal. Critics argued that the motion is scandalous, particularly on two grounds. Firstly, the reference to “marriage” as a precondition for amnesty implies, given the illegality of same sex marriage in Turkey, that sex crimes against boys are punishable, while against girls they are admissible. This violates the equality principle of the Constitution and normalizes rape and forced marriage of girls. Secondly, by seeking consent of the child to the act, a blind eye is turned to the entrapment of the girl into a state of coercion and violence.
Following the public outcry, the motion was withdrawn, and on 24 November the draft bill was adopted by the parliament without the controversial motion.
While the withdrawal of the infamous clause was celebrated as a victory, it soon became clear that there is an inherent danger in the adopted bill itself. Feminist lawyers and women’s organizations – particularly the TPC 103 Women’s Platform made up of nearly 140 autonomous women’s organisations – are concerned about the age categorization that now exists in the amended Article 103. Although 15 years is still the age of consent, because of the way it is stated it leaves room for interpretation, which given Turkey’s judicial history, could entice some judges to seek consent from the girl child between 12 and 15 years of age.
The background 
The initiative to amend Article 103 was motivated by the Constitutional Court rulings of December 2015 and July 2016 that annulled two clauses of Article 103, and gave the government twelve and six months respectively to amend the law accordingly. The annulments were justified on the grounds that the penal sanctions of the law do not differentiate the nature and circumstances of the act against victims in different age groups.
In 2002, the minimum age of marriage was raised to 17 years for both men and women, with a provision that allows marriage at the age of 16 with the consent of the court under “exceptional circumstances”. In 2004, the new Penal Code defined all sexual acts against children under the age of 15 as sexual abuse. With the going into force of the reformed laws, widespread abuse of the laws and problems burdening the courts were recorded. While most legal experts and women’s groups recognize and agree that these problems need to be addressed, the predicament is 0ver how to address them.
Women’s organizations that have been advocating for abolishing child marriages by confronting its underlying causes, argue that while the new amendment toughens sentences for offenders targeting children under 12, the age categorization for 12 to 18 year- olds paves the way for lowering the age of consent below 15.
Furthermore, reference to “circumstances of the case”, i.e. social context, customs and traditions, invites an unconditional shift from punitive justice to reparative justice, thus laying the ground for the violation of the Constitution as well as international treaties Turkey is party to.

Reality of culture and customs 

The architects of the infamous ‘motion’ of 17 November, as well as the Prime Minister and the Minister of Justice who backed them up, were arguably acting under the premise that punitive measures overlook the reality of “the custom of child marriage” and the deprivations that result from sanctions applied to those involved. The Prime Minister, in defense of the motion, argued that there are over 3,000 men who are arrested for marrying a minor by conducting a religious ceremony with the “consent” of the family and the girl. “They don’t know the law, then they have kids, the father goes to jail and the children are alone with their mother… This is a law to eliminate this victimization for just one time.”
The government’s approach to solving such a deep rooted problem by legalizing child marriages and the sexual abuse of girls, rather than taking measures to confront discriminatory values, empower girls and women, encourage girls’ education and the implementation of its own laws with diligence, is nothing short of state accomplice to crime. It is estimated that one in three marriages in Turkey involves an underage girl, which implies that girls become mothers before they grow up. Advocacy and lobbying of women’s groups gave visibility to the magnitude of the problem, which motivated the Parliamentary Commission on Equality of Opportunity for Women and Men in 2009 to conduct an investigation into child marriages and make recommendations towards its eradication.
Governmental policy and action over the past years show a shift away from the understanding that led to the Commissions’ work, which was embraced with enthusiasm by its AKP members as well as those of other parties. In this sense, the AKP’s stand on sexual abuse and child marriage, irrespective of the intention, represents an ethical regression. The danger of such regression lies in its implications for eroding the moral fabric of society in the long run. Meanwhile, petty patriarchs, who are encouraged by those in authority, become empowered and voice their misogynous ideals without any need for restraint.
For example, a pro-AKP author speaking at a TV program shortly after the infamous motion was opened to public debate, made provocative statements in defense of the government’s approach to child sexual abuse and early marriage.  He took it upon himself to speak on behalf of the “Turkish culture” in declaring that a child at age of 12 or 13 should be able to get married if they wanted – the designation of 18 as the legal age for consent, according to him, is a Western invention.
Persistence of culture-based discourses 
Regrettably, when it comes to the universality of women’s human rights and their validity in a given local context, such culture-based claims continue to dominate the public discourse in many societies. These discourses also provide a reference point for judicial systems in excusing acts of violence against women or justifying sexual abuse of a child, as is the case under discussion.
The fact that, women’s rights are rejected in the name of  “our culture” in seemingly diverse cultural contexts raise many questions and continually compel us to unpack, confront, and demystify such claims.
During my six year tenure as UN Special Rapporteur on violence against women, I witnessed how in almost all countries I visited, cultural references were made to excuse or reject women’s human rights. Authorities would invariably refer to “our culture” when questioned about their poor record in complying with their international obligations to combat violence against women and enhance gender equality.  This prompted me to devote one of my thematic reports to the Human Rights Council to the subject of “Intersections of Culture and Violence against Women”. I have also included the text in my book, Violence without Borders: Paradigm, policy and praxis concerning violence against women (2016).
Common myths 
In challenging cultural claims, I draw attention in the book to the myths surrounding dominant cultural paradigms. These myths serve to protect the interests of those who monopolize the right to speak on behalf of culture; they also develop a life of their own as they spread, take root, and transform into widely taken for granted “facts of life” over time.
According to one myth, culture is presented as static and immutable time-honored “traditions.” Customary law, in particular, derives its legitimacy from this claim to tradition. However, throughout the world, the customs and traditions that constitute the foundation of local customary law have been distorted, eroded, and transformed as a result of factors such as colonialism, wars, invasions, mass migrations, national integration, etc. and have changed and reproduced themselves according to the shifting social dynamics and balances of power.
The world order that has been spreading over the past few centuries has adjoined different cultures economically, politically, and socially within a hierarchical system of power. “Customs” that are positioned in opposition to women’s rights today have in fact been molded within the very cultural imperialism they claim to oppose and have served as a point of reference for hegemonic powers to solidify their positions through manipulating culture.
Another common myth is that culture is homogenous and monolithic. A dominant, discriminatory paradigm is presented as the only legitimate interpretation of culture, while diverse voices are silenced, particularly if they are those of women or other marginalized groups. The concept of “Asian values” is a case in point. Similarly, The Cairo Declaration on Human Rights in Islam (1990) presumes that there is one homogeneous Muslim view of Islamic values based on very intransigent human interpretations of the Qur’an. Human rights activists, reformist clerics and women’s rights groups working from within Islamic jurisprudence, among others, have contested this monolithic representation of Islamic culture.
A third myth is that culture is apolitical and detached from the prevailing power relations as well as the economic and social circumstances it operates in. This view provides a convenient veil to disguise various interests and balances of power that underlie cultural practices that are harmful to women.
Armed conflict, occupation, the war against terror, and militarist cultures, although with diverse outcomes, often reinforce dominant cultural paradigms that discriminate against women. Sustenance of group boundaries, family honor, and the maintenance of everyday life fall on the shoulders of women, for whom this means conformity to the strict norms of patriarchy. During conflict, the perceived need to “rally ’round the flag” of group identity or the wider, more “noble” causes is instrumentalized as a pretext to further entrench patriarchal control within the group or trivialize women’s movements.
Similar dynamics can also be observed in immigrant, minority, or indigenous communities that experience ethnic or religious discrimination. In an effort to define themselves in opposition to the majority that rejects them, or to preserve the group identity threatened by the majority, there is a strong tendency among these groups to adopt essentialist or fundamentalist interpretations of their own culture. Men who regard themselves as the makers and protectors of culture impose rigid codes of conduct on women who are regarded as the transmitters and bearers of culture. Violence is used, where necessary, to enforce women’s compliance with these impositions.
Militarist discourse also reinforces the public approval for violence as it promotes rigid notions of womanhood that draw on the traditional role of women as mothers to serve the national interest, including by raising “good soldiers,” and notions of manhood that favor violence-prone masculinity. In addition, in the case of failed states or when extremist groups besiege state institutions, the most oppressive and violent interpretations of culture are imposed on society, undermining the notion of rule of law, primarily when it comes to women’s rights.
On the other hand, reducing violence to specific cultural practices of the “other” de-link the problem from its structural root causes and hinders women’s struggles for their rights. Particularly for women in the global south, such an approach implies that their “salvation” lies in denouncing their own cultural identity and surrendering to imperialist projects.
In short, culturalizing the problem of women’s rights (whether in its orientalist or occidentalist form) diverts attention from the unequal gendered structures, as well as from the wider economic and political environment in which these hierarchies evolve and persist. It provides a perfect alibi for traditional patriarchs to evade any responsibility to accommodate women’s rights claims. Cultural interpretation of women’s subordination relieves the developed countries of the responsibility for poverty, dispossessions and destruction caused by capitalism, neoliberal economic policies, militarism, occupation, and armed conflicts.
Compromising women’s rights or abandoning them to the mercy or compassion of the powerful is not an option. Therefore, the response to the challenges that confront us today in the name of cultural essentialism and relativism is to resist and disclose the oppressive practices in the name of culture, while respecting our diverse cultures and interpreting universal human rights on the grounds of not “uniformity” but rather “difference.”
The 16 Days of Activism against Gender Violence Campaign that started in 1991—spanning from November 25, International Day on the Elimination of Violence against Women, to December 10, International Human Rights Day—emphasizes the need for the recognition of violence against women as an international human rights issue. The 16 Days Campaign has become a cultural event symbolizing women’s resistance to gender inequality. It draws on local culture to raise awareness while strengthening solidarity at a global level.
Pushing forward 
In the final analysis, the realization of women’s demands for rights and freedoms requires a consistent political commitment and a non-compromising willingness on the part of the state. In Turkey, the past decade has witnessed a steady decline in this respect. Parallel to this decline are the growing tensions with the West; a deep polarization in society; the refugee crisis; the breakdown of Turkey’s peace process; devastation caused by terrorism and counterterrorism measures; internal displacements; intolerance of all forms of criticism of the government; and finally, following the bizarre coup attempt of July 15, mass dismissals civil servants from all sectors, arrests of journalists, academics, politicians, including the Kurdish leaders of HDP (Peoples’ Democratic Party) and near breakdown of the EU accession process.
Against this background, the backlash against women in Turkey will likely continue to accelerate with the blessing of the government. This is a serious setback and challenge for feminist advocacy and activism, which accounts for the many progressive laws concerning women’s rights passed under AKP administration since early 2000. Ironically, the Council of Europe Convention on preventing and combating violence against women and domestic violence, which an AKP administration took ownership of and housed its inauguration in Istanbul in 2012, is also at risk of being trivialized.
Nonetheless, as demonstrated in the reaction to the sexual harassment bill, the women in Turkey are determined to continue with their feminist struggle, although the stakes are higher and the challenges tougher today.
Human rights and secularism, with all their short comings, need to be defended to the end.

 

Yakin Ertürk was the UN Special Rapporteur on Violence against Women (SRVAW) 2003-2009, and until recently Professor of Sociology at Middle East Technical University, Ankara, Turkey. She also undertook numerous international assignments, including as a member of the International Independent Commission of Inquiry on the Syrian Arab Republic by the UNHRC (Sept 2011- March 2012). She is a member of the Board of the Asylum and Migration Research Center in Ankara, and served on the Council of  Europe, Committee for the  Prevention of Torture (CPT).

 

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