What is the crime of obscenity, and what is not?

Obscenity is a concept that is used quite easily in daily life, but whose boundaries are not so easy to define from a legal perspective. Does the fact that an image, word, or behavior causes discomfort in a person mean that it is legally obscene? Or can a behavior that a significant part of society considers immoral become a subject of criminal law for this reason alone?

The answer to these questions cannot be given solely by looking at Article 226 of the Turkish Penal Code. This is because the crime of obscenity, while containing important objectives such as the protection of children and society on one hand, is directly related to freedom of expression, freedom of art, private life, and the boundaries of criminal law on the other.

What is the crime of obscenity?

In the Turkish Penal Code, obscenity is regulated in Article 226 under the heading "Crimes Against Public Morality." Instead of providing a direct definition of obscenity, the law has chosen to list one by one which behaviors will be punished.

In the first paragraph of the article, providing products containing obscene images, writings, or words to children, displaying these contents in places where children can see them or in public, offering them for sale or rent, distributing them, and advertising them are regulated as crimes. In the second paragraph, the publication of obscene images, writings, or words through press and broadcasting, or acting as an intermediary for their publication, is also punished separately.

In the subsequent paragraphs of the law, more serious acts such as the use of children, representative images of children, or persons appearing as children in the production of obscene content, as well as the importation, reproduction, sale, possession, and making such products available for the use of others, are regulated. Content involving violence, animals, dead human bodies, or what the law refers to as "sexual behaviors performed in an unnatural way" are also regulated separately.

Therefore, the crime of obscenity is not a simple type of crime consisting of a single behavior. There are different actions and different areas of protection in the different paragraphs of the law.

What are the elements of the crime?

At the foundation of the crime of obscenity, one of the material actions specified in the law must first be performed. In other words, it is not sufficient for content to merely have a sexual nature. In addition to the nature of the content, what the perpetrator does with this content is also important.

For example, providing obscene content to children and making it accessible to adults are not subject to the same legal evaluation. Displaying, selling, distributing, or advertising content publicly are also different actions from one another.

For this reason, when evaluating whether a crime has been committed, it must first be determined which paragraph of TPC Art. 226 the concrete case can be handled under.

There is one more particularly important point here. In terms of TPC Art. 226, an "obscenity" assessment cannot be made in the same way in every case. The nature of the content, the manner of presentation, the target audience, whether access by children is possible, whether the act is public, and other circumstances of the concrete case must be evaluated together.

So, what is required for the crime of obscenity to occur?

The most fundamental point must be stated here: Not every sexual content constitutes the crime of obscenity. In criminal law, for an act to be considered a crime, the typical action regulated by law must occur. Therefore, saying "This image is obscene to me" and saying "Sharing this image constitutes a crime within the scope of TPC Art. 226" are not the same thing.

For example, the fact that a behavior performed by two adults within the scope of their private lives is merely sexual in nature does not mean that the crime of obscenity has been committed on its own. In addition to this, issues such as how the image or content was obtained, who it was shared with, whether it became public, and whether it was made available to children are also important. Especially in the internet age, this distinction has become even more important. There is a serious legal difference between an image that a person possesses privately and an image that they have made accessible to millions of people.

The provisions of TPC Art. 226 regarding the protection of children should also be evaluated separately at this point. It is seen that the legislator has established a much stronger protection mechanism against obscene content that can reach children. Similarly, much heavier sanctions have been foreseen regarding the use of children or persons appearing as children in the production of obscene content.

Another important point is found in TPC Art. 226/7. The law excludes scientific works and, under certain conditions, works with artistic and literary value from the scope of the article. Thus, the boundaries of criminal law's intervention in the fields of science, art, and literature have also been attempted to be drawn.

If morality is relative, what is criminal law protecting?

This is where the real debate begins. The fact that the crime of obscenity is regulated among "Crimes Against Public Morality" inevitably brings the relationship between criminal law and morality to the agenda. However, morality is not a fixed concept that means the same thing to everyone. It changes from society to society, from period to period, and even according to different groups within the same society. It is possible for a behavior that was considered deviant in one period to become commonplace years later. What is accepted in one society can be heavily criticized in another.

The duty of criminal law cannot be to attach sanctions to every moral judgment in society. Because law and morality do not have to coincide. Making every behavior found morally wrong a crime severely narrows the individual's sphere of freedom. Criminal law is one of the state's most severe tools of intervention. For this reason, acting solely with the moral convictions of a part of society when determining which behaviors will be considered crimes will create serious problems in terms of the principles of legality and certainty.

It would not be correct to say here that the concept of "public morality" should be completely excluded from the law. There are areas where criminal law protects the common life of society and especially those in need of protection. The protection of children from sexual content is the clearest example of this. However, the problem arises when the criterion of morality becomes the sole measure of criminal law. There is a significant difference between a behavior not being welcomed by a certain segment of society and that behavior violating someone else's rights. Criminal law must observe this difference. Therefore, the debate regarding the crime of obscenity is not actually just about sexuality. At the center of the debate is also the question of how much the state can intervene in an individual's life.

A photo, a video, a social media post

This debate is no longer conducted only through books, magazines, or cinema. Social media, YouTube, and other digital platforms have made the crime of obscenity a much more visible part of daily life. As a current example of this, one can look at the investigation discussions that came to the agenda this week regarding Bennu Gerede. News was published that a judicial process was initiated with an accusation of obscenity after a product for sexual purposes was shown and conversations were held about the product on a YouTube program that Gerede attended.

What is legally important here is not to answer the question, "Is what Bennu Gerede did a crime?" in advance. What should really be asked is which action regulated in TPC Art. 226 the concrete case corresponds to.

Is it sufficient for a person to show a product of a sexual nature on its own? Should the product itself be accepted as a "product containing obscene images, writings, or words"? How should the manner of presentation of the content, publicity, and the audience be evaluated? How do the entire program and the context of the conversation affect the elements of the crime? Is the product being advertised?

Reaching a conclusion of crime based solely on the fact that the image creates a reaction in a part of society without answering these questions is incompatible with the fundamental principles of criminal law.

Precisely for this reason, the evaluation of the concrete case in the crime of obscenity is of great importance. Criminal law cannot take a few seconds of footage or a single sentence on social media out of context and evaluate it. It must look at the entirety of the act, the nature of the content, and the typical action in the law.

Can criminal law act as a moral guardian?

This is perhaps the most difficult question of the crime of obscenity. There is a strong legal justification for the state to protect children, combat sexual exploitation, and ensure the sexual inviolability of individuals. However, when it comes to the lifestyles, preferences, or forms of expression of adult individuals, the matter reaches a different point. The boundary of criminal law should be drawn here. The fact that a behavior creates a reaction in society does not mean that it is automatically a crime. Likewise, the fact that content is found to be immoral by some people does not justify a criminal sanction on its own.

The existence of the crime of obscenity therefore necessitates an important balance. On one side, there is the protection of society and especially children, and on the other, the individual's sphere of freedom. The balance to be established between these two areas should be established not only with moral evaluations but with the fundamental principles of the rule of law such as legality, certainty, proportionality, and freedom of expression.

In the end, the issue is not just the question of "what is obscene?" The more important question is this: If we start to accept a behavior as a crime the moment we find it morally wrong, where will we draw the boundaries of criminal law? Criminal law is not an unlimited tool that can be used to protect the moral boundaries of society. The boundaries of criminal law are drawn by law. These boundaries should be interpreted narrowly, especially when it comes to intervention in the sphere of freedom. This is why the debates regarding the crime of obscenity have gained importance again today. Technology is changing, society is changing, and people's views on sexuality and privacy are changing. But the fundamental principles of criminal law should not change. Because what is more important than what a society finds shameful, disturbing, or immoral is that it can be clearly demonstrated by law which behavior is considered a crime and why.

Attorney Deniz Ali İlkem Demir