Honor and Freedom of Expression
First came the news that Guldunya Toren, a young woman who became pregnant by a married relative was killed by her brothers when she was in hospital, trying to recover from the wounds already inflicted by the same at a prior attack. It was understood she was not given police protection.
Before we even finished discussing this case, another shock came: A feminist novel written by Meltem Arikan called Stop Hurting my flesh! was banned by the Report of "The Committee to Protect the Minors from Obscene Publications".
According to the Report the novel, which is based on true stories, took up child abuse, incest and domestic violence cases "as if these immoral acts were normal values in Turkish families" and thus threatened the family system in Turkey.
The Report assumed that a book aiming to warn against such crimes was itself committing a crime. Based on this Report, Istanbul 1. Magistrate Criminal Court decided to confiscate the book because it was considered "to contradict the moral values of the population, arousing and abusing sexual desire."
And this happened after the amendment to Article 426 was accepted according to the implementation of harmonization laws, i.e. that "works of art, science and literature will be exempt from this law". (According to the "seventh harmonization package", dated 30.07.2003, no. 4963, art. 3, the evaluation of "what is a work of art, science or literature will be made according to Law on the Intellectual and Artistic Property, as accepted in 5.12.1951, no. 5847.) The fourth re-print of this book is now made by taking out the so-called " immoral" parts stated in the Report.
It is ironic that these events coincide with discussions that the Turkish Penal Code (TCK) is discriminative against women, especially with the use of such words as "honor", "public moral", "the order of family and society", "public decency", different words and crime definitions for married and unmarried women, and other discriminative articles like dealing with rape crimes as crimes committed against the family and society.
After a long struggle and lobbying, "The Women Study Group of the Turkish Penal Code", constituted of nine women's organizations, succeeded in getting most of their offers into the law changes.
Thanks to the work of women's groups, the Penal Code changes were handed over to a sub-committee of five, who took into consideration the proposals of the mentioned group. According to Hulya Gulbahar, the lawyer of women's shelter Purple Roof, the positive changes made in the Turkish Penal Code by the Sub-committee of Ministry of Justice are (these will be submitted to the Justice Commission, then taken to the Parliament for approval):
- The description of the term "woman" is taken out of the law, therefore discrimination between married and unmarried women (which used to lead to different punishments for similar crimes committed by men against women) has ended. It is thereby once more stressed that women are equal to men before the law, regardless of their marital status and profession.
- The condition of "provoking" that had led to drastic penalty reductions in crimes such as "honor killings" have been changed to "tortious acts", i.e. an act should be committed to serve as extenuating circumstance.
- Killing of spouse and siblings is considered "murder with criminal capacity", i.e leads to heavier penalty.
- The punishment reduction for the killing by mother of the extra-marital child is lifted, and so the "intra/extra marital children" discrimination has ended.
- Domestic violence is stated under the title "tormenting" under the chapter of "torture".
- It is added in the article of discrimination that discrimination based on gender and sexual preference is outlawed.
- Sexual Crimes are no longer seen as crimes against the society, or against concepts like "Public Decency", "Family Order", "Custom of Decency '. Now they are listed under "Crimes Against Individuals" and "Crimes Against Sexual Integrity".
- Intra-marital rape is now considered a crime, though subject to appeal.
- When sexual crimes are committed by security forces, the sentences will be heavier, and when torture takes the form of sexual harassment this also will be subject to heavier penalty.
- The article allowing the raper go free when accepting to marry the victim is lifted.
- The sexual abuse of children are taken under separate legislation and the term "consent" is taken off.
- Art. 312, dealing with insults based on social class, race, religion, religious sect or region, has been changed to include gender, making gender based insults a crime for the first time.
The same groups warn that there are still some points to be changed in the law and that the term "chastity" or "honor" should be completely taken out from the Code. The main problematic points are:
- Even though blood feuds are now considered "murder with criminal capacity", "honor killings" are still not.
- Virginity tests are still not named as crime.
- There is still the risk that sexual relationship with common consent among people between age 15-18 will be considered a crime, i.e. that flirting will be controlled by law even though people are allowed to get married at 17 (16 in special cases).
- The sub-committee has forgotten to include the condition that "works of art, science and literature shall be exempt from the "obscenity law", i.e. TCK 426.
- In describing obscenity, the sub-committee has defined "sexuality through unnatural means" which is dubious.
- Hence the concept of "honor" still exists as a mechanism of control.
The misinterpretation/misuse of obscenity laws in Turkey demonstrates how justified these concerns are. The "Committee to Protect the Minors from Obscene Publications" was established in 21.6.1927 under the Prime Ministry, to work as official experts for judicial bodies in cases concerning obscenity like those mentioned in TCK Articles 426, 427, 428.
The Committee consists of 11 people, one chosen by National Security Council (recently lifted, in accordance with the harmonization laws), Prime Ministry, Ministry of Justice, Ministry of Interior, Ministry of Culture and Tourism, Ministry of Health and Social Help, Council of Higher Education (YÖK), Ministry of Religious Affairs, Directorate General of Press and Information each and two members by Ministry of Education.
The committee decides which publications are harmful for minors and should be sold in covered form with a sign indicating 'harmful for the minors'. The public prosecutor can ask the magistrate to confiscate such publication and even if the judge refuses, may insist to send the publication to the Committee for their report.
The "Law on the Protection of the Minors from Obscene Publications" was reactivated in 1986, after the 1980 coup d'etat in Turkey, with amendments, as a new way to control publications.
There were great protests against it. In March 2nd, 1986 Chair of Contemporary Journalists Association Ahmet Abakay said "it is unacceptable that 10 out of 11 members of the Committee are people outside publishing circles.
" The law was passed in March 6th, 1986, during the government of so called liberal Turgut Ozal, was accepted by the then President (former coup d'etat leader) Kenan Evren in March 11th and came into force in March 12th.
The law was seen as a means to supply much needed funds (Social Housing Fund) as high penalties were received. In the name of the main opposition party of the time in the Parliament (Social Democrat People's Party) Aydin Guven Gurkan appealed for its repeal, stating that this law was contradicting the Constitution and the "state of law" since 1) subjective criteria was used to determine what was harmful for minors, 2) The committee was formed within Prime Ministry, rendering it under the influence of the existing government, etc. but the appeal was rejected.
As a publisher, I first encountered the Obscenity Law in 1986. When they started giving high fines to and confiscating "Playboy" type "pornographic" material we did not realize it would be of any concern for us "cultural publishers", but then one day they banned and confiscated Tropic Of Capricorn by Henry Miller.
This was the last straw, so we decided to start fighting back. 40 publishers in Turkey came together to re-publish this banned book, using a tactic that turned out to be very useful: We took off the "obscene pieces" mentioned in the Report from the book, but published the Report along with it, so that you could read the whole book as a jigsaw puzzle.
The cover read: "For a world in which books are not considered threatening." We were immediately put to court but were acquitted in the end, setting an example that would be much repeated in the future cases.
In the following years the Committee kept on naming hundreds of publications as obscene, but most of these were acquitted by courts. In many cases, like the popular feminist best seller Kadinin adi yok (Woman Has No Name) of Duygu Asena, the comics book Pazar Sevisgenleri (Sunday Lovers) of Metin Ustundag, painter and politician Bedri Baykam' s novel Kemik (Bone), Philip Roth's Portnoy's Complaint, acclaimed poet and literary critic Enis Batur's book Elma (Apple), acclaimed art critic Mehmet Erguven's Pusudaki Ten (Flesh in Ambush), Sade's Juliette, Jonathan Ames' "The Extra Man" and acclaimed poet Kucuk Iskender's poetry "666" the books were acquitted in the Criminal Court of First Instance, despite negative reports of this Committee.
In others, the courts were giving fines. The cases of Chuck Palahniyuk's "Choke", pop singer Eminem's lyrics, Irvine Welsh's "Porno", Elfride Jellnek's "Pianist", Pedro Almadovar's "Patty Diphusa and Other Writings" are still pending.
But in the year 2002 Alina Reyes' "Lilith" was confiscated, though money fines were postponed. Then 2. Court of First Instance decided for the annihilation of Dragan Babic's Son Surgun (The Last Exile) and in 2003 the same court decided for the annihilation of three books in succession: Marquis de Sade's "Yatak Odasinda Felsefe" (Philosophy in the Bedroom) and Erje Ayden's "Ikinci Caddenin Çılgın Yesili" (Crazy Green of the Second Street) and "Hauptbahnof'tan Bir Trene Bindim" (I Got on a Train from the Main Station).
The publishers of these books, Ayrinti and Pyramid respectively received heavy fines. This has shown a change in the climate, as expected from the conservative government in Turkey and demonstrated how this Committee could be used as a way of control in the hands of political power.
Let me end with my own obscenity case, which I believe tells the story perfectly in a nutshell. We published "The Dictionary of Women's Slang" in October 2001, prepared by Filiz Bingolce, with an introduction by Hulki Aktunc, poet and acclaimed author of "The Big Dictionary of Turkish Slang".
Beyoğlu District Public Prosecutor opened a case against this book, claiming, "it is obscene" and "contrary to public moral" according to 5680 Art. 16/4 and TCK 426/1, 427 last and 119/1 articles.
Even though the prosecutor's appeal to 9. Criminal Court of First Instance to confiscate the book was rejected twice by this court, who stated that "the dictionary does not contradict with the democratic values of Turkish society, nor the social norms; does not offend the honor and chastity customs of society and does not arouse or abuse sexual desire" the Prosecutor insisted and we were put to court.
We made our defense as the authors and the publishers that "obviously the work in question is a dictionary, so it obviously does not have pornographic aims, and the words attested as 'dirty' and 'obscene' by the prosecutor already exist in many of the dictionaries in Turkey, including the first Turkish language dictionary dating from 1072-73, Divan-i Lugat-it Turk prepared by Kasgarli Mahmut, which has been translated into contemporary Turkish by Turkish Language Institution."
Then the court asked for the opinion of the Committee. Their report is a perfect example of how freedom of expression in Turkey is being controlled by the abuse of this commission, I remind you, which is under the surveillance of the Prime Ministry. I quote from the Report:
"Obscenity is dealt with under the Articles 426, 427 and 428 of the Turkish Penal Code, updated in 3.2.1986 with code 3266. There are two main points describing obscenity: 1) offending the chastity of the society, 2) arousing and abusing sexual desire. We believe the first point is enough by itself to describe obscenity. We have to assume that the 'chastity of society' is the average 'decency' and a 'normal moral perception'.
"This dictionary is called 'Women's Slang Dictionary'. When we look at the meaning of slang, it is obvious that you cannot have a dictionary of slang or claim that half of the population uses such words. Language is the mirror of social structure and culture, since all the oral and written cultural values of a society are conveyed through language.
"Language also forms a society and LANGUAGE TAKES OVER THE TASK OF CEMENTING THE NATIONAL UNITY. Turkish language, HAS VOICED THE NATIONAL SPIRIT not only with its vocal and formal structure, with its vocabulary, idioms and conceptual elaboration, but also with the subtilty and beauty of its style.
"Turkish woman is a respectable member of our society with her chastity and honor, with her belief and ideas.
"By bringing together very limited use of slang in this book, the purity of Turkish language, the essence of our culture and the respectability of Turkish women who are perfect examples of chastity are put to question.
"In this capacity, this book is not a dictionary but a book to quench sexual curiosity, obstructs the development of Turkish language and has no public merit whatsoever."
The ideological approach is unfortunately obvious here, putting the autonomy of judgment under suspicion.
We have stated in our defense in that the Report is completely subjective, unlawful and discriminative against women, since other slang dictionaries in Turkey had never been subject to such judgment, and because the description of women in the Report is obviously discriminative. Nowhere in the Turkish Constitution can you find a definition stating that "female Turkish citizens" have to be "chaste", "examples of chastity", "respectable family members" etc.
Now the case is postponed again to October 2004, and we are waiting for the expert's report this time from Istanbul University Literature Department. This may sound better than the first commission but may I remind you that the University Law has changed drastically after the coup d'etat in 1980, diminishing the autonomy of the universities, so though we are keeping our fingers crossed, we are trying to be prepared for another nasty shock.
But meanwhile, the women's groups continue to be in touch with the sub-committee of law changes and keep on discussing the changes introduced into the Penal Code.
And through professional organizations and initiatives we all struggle to keep all the changes positive in Turkey. (MGS/YE)
* Muge Gursoy Sokmen, Metis Publishers, Turkish PEN, WIPC Chair
* * Speech delivered on April 7th, 2004, in the "Joint IPA/International PEN Round Table on Freedom of Expression: Civil and Political Rights in Turkey, A General Overview with a particular emphasis on Freedom of Expression, the Reform Packages and Implementation Problems", at the 60th Sessions of the UN Commission on Human Rights, Palais des Nations, Geneva