İslâm Ceza Hukukunda Nitelikli Cinsel Saldırı Suçu Üzerine Bazı Mülahazalar.

It is possible to follow the change that has occurred in the historical process in the crime of aggravated sexual assault through the definition of the crime and the legal interest that is aimed to be protected by the relevant penal rule. At the stage we have reached, the change experienced can be observed in the old and current Turkish Penal Codes. Comparing the approach of Islamic criminal law regarding the crime of aggravated sexual assault with today's criminal thought shows how striking the change is. The study aims to prove comparatively how the crime of aggravated sexual assault is defined in Islamic criminal law and what legal interest is pursued with this regulation. It is hoped that the study will also be an example of how the phenomenon of change in criminal thinking takes place. The most commonly used terms to express the crime of aggravated sexual assault in Islamic criminal law are al-ikrāh 'alā al-zinā, al-istikrāh 'alā al-zinā, al-zinā karhan and al-ightisāb. The terminology used to specify the crime of aggravated sexual assault seems to be influenced by the fact that the crime is considered as the crime of adultery and also by some jurists as the crime of hirābah. This perception led to the inability to develop a direct and independent term to express the crime of aggravated sexual assault in the classical doctrine of Islamic criminal law. In Islam, sexual intercourse between man and woman is not considered legitimate unless there is a marriage or ownership relation. However, the existence of suspicion of marriage or ownership removes the penalty, even if sexual intercourse constitutes a crime. In Islamic law, same-sex intercourses are completely prohibited with no exceptions. The perception of sexual freedom in today's criminal law does not comply with the principle of Islamic law, 'what is the main in sexual intercourses is not permission, but prohibition'. The objective element of the crime of sexual assault is the act related to the sexual content being perpetrated without the consent of the victim. The crime may be committed by physical violence, 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 aggravated sexual assault from the crime of adultery, either the term ikrāh/istikrāh/karhan together with the word zinā or the term ightisāb which means direct forced acquisition, is used. In the classical doctrine of Islamic criminal law, the act of aggravated sexual assault is not defined as a separate crime, but is classified in the scope of zinā or hirābah. The inability to define the crime of aggravated sexual assault as a separate crime led to different approaches in the issues of which the sanctions will be imposed on the crime and how the crime can be proven. As for in the Ottoman criminal law, the crime of aggravated sexual assault was mostly regulated by state legislative procedure. [ABSTRACT FROM AUTHOR]