Kidnapping

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El Malon, by Johann Moritz Rugendas (1802-1858), historic painting depicting kidnapping of a woman Mauricio rugendas - el malon.jpg
El Malón , by Johann Moritz Rugendas (1802–1858), historic painting depicting kidnapping of a woman

In criminal law, kidnapping is when a child is taken away from their family by a older man or women and when the child is sexually assaulted or raped. Thus, it is a composite crime. It can also be defined as false imprisonment by means of abduction, both of which are separate crimes that when committed simultaneously upon the same person merge as the single crime of kidnapping. The asportation/abduction element is typically but not necessarily conducted by means of force or fear. That is, the perpetrator may use a weapon to force the victim into a vehicle, but it is still kidnapping if the victim is enticed to enter the vehicle willingly, e.g., in the belief it is a taxicab.

Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws. Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation, rather than on punishment or rehabilitation. Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender.

Contents

Kidnapping may be done to demand for ransom in exchange for releasing the victim, or for other illegal purposes. Kidnapping can be accompanied by bodily injury which elevates the crime to aggravated kidnapping. [1]

Ransom practice of holding a prisoner or item to extort money or property

Ransom is the practice of holding a prisoner or item to extort money or property to secure their release, or it may refer to the sum of money involved.

Kidnapping of a child is also known as child abduction, and these are sometimes separate legal categories.

Child abduction or child theft is the unauthorized removal of a minor from the custody of the child's natural parents or legally appointed guardians.

Motivations

The abduction of Dinah, (watercolor circa 1896-1902 by James Tissot) Dinah tissot.jpg
The abduction of Dinah, (watercolor circa 1896–1902 by James Tissot)

Kidnapping of children is usually by one parent against the wishes of a parent or guardian. Kidnapping of adults is often for ransom or to force someone to withdraw money from an ATM, but may also be for the purpose of sexual assault.

Automated teller machine electronic banking kiosk

An automated teller machine (ATM) is an electronic telecommunications device that enables customers of financial institutions to perform financial transactions, such as cash withdrawals, deposits, transfer funds, or obtaining account information, at any time and without the need for direct interaction with bank staff.

In the past, and presently in some parts of the world (such as southern Sudan), kidnapping is a common means used to obtain slaves and money through ransom. In less recent times, kidnapping in the form of shanghaiing (or "pressganging") men was used to supply merchant ships in the 19th century with sailors, whom the law considered unfree labour.[ citation needed ]

Sudan Country in Northeast Africa

Sudan, officially the Republic of the Sudan, is a country in Northeast Africa. It is bordered by Egypt to the north, the Red Sea to the northeast, Eritrea to the east, Ethiopia to the southeast, South Sudan to the south, the Central African Republic to the southwest, Chad to the west, and Libya to the northwest. It has a population of 39 million people and occupies a total area of 1,886,068 square kilometres, making it the third-largest country in Africa. Sudan's predominant religion is Islam, and its official languages are Arabic and English. The capital is Khartoum, located at the confluence of the Blue and White Nile. Since 2011, Sudan is the scene of ongoing military conflict in its regions South Kordofan and Blue Nile.

Slavery System under which people are treated as property to be bought and sold, and are forced to work

Slavery is any system in which principles of property law are applied to people, allowing individuals to own, buy and sell other individuals, as a de jure form of property. A slave is unable to withdraw unilaterally from such an arrangement and works without remuneration. Many scholars now use the term chattel slavery to refer to this specific sense of legalised, de jure slavery. In a broader sense, however, the word slavery may also refer to any situation in which an individual is de facto forced to work against their own will. Scholars also use the more generic terms such as unfree labour or forced labour to refer to such situations. However, and especially under slavery in broader senses of the word, slaves may have some rights and protections according to laws or customs.

Impressment Forced naval service with or without notice

Impressment, colloquially "the press" or the "press gang", is the taking of men into a military or naval force by compulsion, with or without notice. Navies of several nations used forced recruitment by various means. The large size of the British Royal Navy in the Age of Sail meant impressment was most commonly associated with Britain. It was used by the Royal Navy in wartime, beginning in 1664 and during the 18th and early 19th centuries as a means of crewing warships, although legal sanction for the practice can be traced back to the time of Edward I of England. The Royal Navy impressed many merchant sailors, as well as some sailors from other, mostly European, nations. People liable to impressment were "eligible men of seafaring habits between the ages of 18 and 55 years". Non-seamen were impressed as well, though rarely.

Criminal gangs are estimated to make up to $500 million a year in ransom payments from kidnapping. [2]

Kidnapping has been identified as one source by which terrorist organizations have been known to obtain funding. [3] The Perri, Lichtenwald and MacKenzie article identified "tiger" kidnapping as a specific method used by either the Real Irish Republican Army or Continuity Irish Republican Army, in which a kidnapped family member is used to force someone to steal from their employer.

By jurisdiction

Australia

In Australia, kidnapping is a criminal offence, as defined by either the State crimes act, or the Commonwealth Criminal Code. It is a serious indictable offence, and is punishable by up to 14 years imprisonment. [6]

Canada

Kidnapping that does not result in a homicide is a hybrid offence that comes with a maximum possible penalty of life imprisonment (18 months if tried summarily). A murder that results from kidnapping is classified as 1st-degree, with a sentence of life imprisonment that results from conviction (the mandatory penalty for murder under Canadian law).

Netherlands

Article 282 prohibits hostaging (and 'kidnapping' is a kind of 'hostaging'). [7] Part 1 of Article 282 allows sentencing kidnappers to maximum imprisonment of 8 years or a fine of the fifth category. [8] Part 2 allows maximum imprisonment of 9 years or a fine of the fifth category [8] if there are serious injuries. Part 3 allows maximum imprisonment of 12 years or a fine of the fifth category [8] if the victim has been killed. Part 4 allows sentencing people that collaborate with kidnapping (such as proposing or make available a location where the victim hostaged). Part 1, 2 and 3 will apply also to them.

United Kingdom

Kidnapping is an offence under the common law of England and Wales. Lord Brandon said in 1984 R v D: [9]

First, the nature of the offence is an attack on, and infringement of, the personal liberty of an individual. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse. [10] [11] [12]

In all cases of kidnapping of children, where it is alleged that a child has been kidnapped, it is the absence of the consent of that child which is material. This is the case regardless of the age of the child. A very small child will not have the understanding or intelligence to consent. This means that absence of consent will be a necessary inference from the age of the child. It is a question of fact for the jury whether an older child has sufficient understanding and intelligence to consent. [13] Lord Brandon said: "I should not expect a jury to find at all frequently that a child under fourteen had sufficient understanding and intelligence to give its consent." [14] If the child (being capable of doing so) did consent to being taken or carried away, the fact that the person having custody or care and control of that child did not consent to that child being taken or carried away is immaterial. If, on the other hand, the child did not consent, the consent of the person having custody or care and control of the child may support a defence of lawful excuse. [13] It is known as Gillick competence. [15]

Regarding Restriction on prosecution, no prosecution may be instituted, except by or with the consent of the Director of Public Prosecutions, for an offence of kidnapping if it was committed against a child under the age of sixteen and by a person connected with the child, within the meaning of section 1 of the Child Abduction Act 1984. [16] Kidnapping is an indictable-only offence. [17] Kidnapping is punishable with imprisonment or fine at the discretion of the court. There is no limit on the fine or the term of imprisonment that may be imposed provided the sentence is not inordinate. [18] [19] [20]

A parent should only be prosecuted for kidnapping their own child "in exceptional cases, where the conduct of the parent concerned is so bad that an ordinary right-thinking person would immediately and without hesitation regard it as criminal in nature". [13] [21]

United States

Law in the United States follows from English common law. Following the highly publicized 1932 Lindbergh kidnapping, Congress passed the Federal Kidnapping Act, which authorized the FBI to investigate kidnapping at a time when the Bureau was expanding in size and authority. The fact that a kidnapped victim may have been taken across state lines brings the crime within the ambit of federal criminal law.

Most states recognize different types of kidnapping and punish accordingly. E.g. New York bases its definition of first-degree kidnapping on the duration and purpose. [22] There are several deterrents to kidnapping in the United States of America. Among these are:

  1. The extreme logistical challenges involved in successfully exchanging the money for the return of the victim without being apprehended or surveiled.
  2. Harsh punishment. Convicted kidnappers face lengthy prison terms. If a victim is brought across state lines, federal charges can be laid as well.
  3. Good cooperation and information sharing between law enforcement agencies, and tools for spreading information to the public (such as the AMBER Alert system).

One notorious failed example of kidnap for ransom was the 1976 Chowchilla bus kidnapping, in which 26 children were abducted with the intention of bringing in a $5-million ransom. The children and driver escaped from an underground van without the aid of law enforcement. [23] According to the Department of Justice, kidnapping makes up 2% of all reported violent crimes against juveniles. [24]

From the 1990s on, a gang operating in New York City and New Jersey was involved in the kidnapping and torture of Jewish husbands for the purpose of forcing them to grant religious divorces to their wives. They were finally apprehended on October 9, 2013, in connection with the 2013 New York divorce torture plot. [25] [26] [27]

According to a 2003 Domestic Violence Report in Colorado, out of a survey of 189 incidents, most people (usually white females) are taken from their homes or residence by a present or former spouse or significant other. They are usually taken by force, not by weapon, and usually the victims are not injured when they are freed.

In 2009, Phoenix, Arizona reported over 300 cases of kidnapping, although subsequent investigation found that the Phoenix police falsified data "Phoenix Kidnappings: Uncovering the Truth". Archived from the original on 2013-04-13.. If true, this would have been the highest rate of any US city and second in the world only to Mexico City. [24] A rise in kidnappings in the southwestern United States in general has been attributed to misclassification by local police, lack of a unified standard, desire for Federal grants, or the Mexican Drug War. [28]

In 2010 the United States was ranked sixth in the world (by absolute numbers, not per capita) for kidnapping for ransom, according to the available statistics (after Colombia, Italy, Lebanon, Peru, and the Philippines). [29]

In 2009, the Los Angeles Times named Phoenix, Arizona, [30] as America's kidnapping capital, reporting that every year hundreds of ransom kidnappings occur there, virtually all within the underworld associated with human and drug smuggling from Mexico, and often done as a way of collecting unpaid debts. However, a later audit by the U.S. Department of Justice Inspector General found only 59 federally reportable kidnappings in 2008, compared to the over 300 claimed on grant applications. [31]

During the year 1999 in the United States, 203,900 children were reported as the victims of family abductions and 58,200 of non-family abductions. However, only 115 were the result of "stereotypical" kidnaps (by someone unknown or of slight acquaintance to the child, held permanently or for ransom). [32]

Statistics

Global kidnapping hotspots
 1999 [33] 2006 [34] 2014 [35]
1ColombiaMexicoMexico
2MexicoIraqIndia
3BrazilIndiaPakistan
4PhilippinesSouth AfricaIraq
5VenezuelaBrazilNigeria
6EcuadorPakistanLibya
7Russia and CISEcuadorAfghanistan
8NigeriaVenezuelaBangladesh
9IndiaColombiaSudan
10South AfricaBangladeshLebanon

Countries with the highest rates

Arrested kidnappers in Rio de Janeiro, Brazil lying on the ground Kidnappers arrested Rio.jpg
Arrested kidnappers in Rio de Janeiro, Brazil lying on the ground

Kidnapping for ransom is a common occurrence in various parts of the world today, and certain cities and countries are often described as the "Kidnapping Capital of the World". As of 2007, that title belongs to Iraq with possibly 1,500 foreigners kidnapped. [36] [37] In 2004, it was Mexico, [38] and in 2001, it was Colombia. [39] Statistics are harder to come by. Reports suggest a world total of 12,500-25,500/year with 3,600/year in Colombia and 3,000/year in Mexico around the year 2000. [40] However, by 2016, the number of kidnappings in Colombia had declined to 205 and it continues to decline. [41] [42] Mexican numbers are hard to confirm because of fears of police involvement in kidnapping. [43] "Kidnapping seems to flourish particularly in fragile states and conflict countries, as politically motivated militias, organized crime and the drugs mafia fill the vacuum left by government". [34]

Pirates

Kidnapping on the high seas in connection with piracy has been increasing. It was reported that 661 crewmembers were taken hostage and 12 kidnapped in the first 9 months of 2009. [44]

See also

Related Research Articles

Robbery Taking or attempting to take something of value by force or threat of force or by putting the victim in fear

Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by putting the victim in fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft by its inherently violent nature ; whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words of Germanic origin, from Common Germanic raub -- "theft".

Blackmail is an act of coercion using the threat of revealing or publicizing either substantially true or false, and often damaging, information about a person, to the public, family members, or associates unless certain demands are met. It may involve using threats of physical, mental or emotional harm, or of criminal prosecution, against the victim or someone close to the victim. It is normally carried out for personal gain, most commonly of position, money, or property.

Grievous bodily harm is a term used in English criminal law to describe the severest forms of assault. It refers to two offences that are respectively created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent", whereas the offence under section 20 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm".

In criminal law, incitement is the encouragement of another person to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but may or may not have actually occurred.

A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the required mens rea, and so will escape liability for offences that require mens rea. This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.

Theft Act 1978

The Theft Act 1978 is an Act of the Parliament of the United Kingdom. It supplemented the earlier deception offences contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions. See also the Fraud Act 2006.

Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.

In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than intentional wickedness, but is more blameworthy than careless behaviour.

Common assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery but it does not. In England and Wales, the penalty and mode of trial for this offence is now provided section 39 of the Criminal Justice Act 1988, and it has been held that the offence should be alleged as contrary to the statute because of this. It was also held that common assault and battery are two distinct offences, so that a charge that the accused "assaulted and battered" another person would be bad for duplicity.

"Deception" was a legal term of art used in the definition of statutory offences in England and Wales and Northern Ireland. It is a legal term of art in the Republic of Ireland.

Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to cause either death or serious injury unlawfully. The element of intentionality was originally termed malice aforethought although it required neither malice nor premeditation.

Violent disorder is a statutory offence in England and Wales. It is created by section 2(1) of the Public Order Act 1986. Sections 2(1) to (4) of that Act provide:

Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises in both English criminal law, and in civil law, where it is relevant to English contract law and English trusts law.

Conspiracy to defraud is an offence under the common law of England and Wales and Northern Ireland.

English criminal law

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

At law, cheating is a specific criminal offence relating to property.

Rape is a statutory offence in England and Wales. According to the law, rape occurs when a man penetrates another person with his penis without the consent of the person being penetrated. If a victim is forcefully penetrated with an object, this is classed as "Assault by Penetration". If the victim is forcefully made to penetrate another, the act can be prosecuted as "Causing a person to engage in sexual activity without consent" . The offence is created by section 1 of the Sexual Offences Act 2003:

Child Abduction Act 1984

The Child Abduction Act 1984 is an Act of the Parliament of the United Kingdom. It creates offences that replace, in England and Wales, the offence of child stealing under section 56 of the Offences against the Person Act 1861.

Conspiracy to murder is a statutory offence defined by the intent to commit murder.

Perjury Act 1911 Act of the Parliament of the United Kingdom

The Perjury Act 1911 is an Act of the Parliament of the United Kingdom. It creates the offence of perjury and a number of similar offences.

References

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  2. "Kidnap and ransom market value".
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  14. R v D [1984] AC 778 at 806, HL
  15. For the Charging child abduction and kidnapping in the same indictment see: R v C [1991] 2 FLR 252, [1991] Fam Law 522, CA.
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  25. Samaha, Albert; "Bad Rabbi: Tales of Extortion and Torture Depict a Divorce Broker's Brutal Grip on the Orthodox Community" Archived April 7, 2016, at the Wayback Machine , Dec 4, 2013; Village Voice
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Further reading