Kidnapping

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El Malón, Johann Moritz Rugendas (1802–1858). The painting depicts a woman being kidnapped during a malón.

In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute. When it is done with legal authority, it is often called arrest or imprisonment.

In some countries such as the United States a large number of child abductions arise after separation or divorce when one parent wishes to keep a child against the will of the other or against a court order. In these cases, some jurisdictions[which?] do not consider it kidnapping if the child, being competent, agrees.

Kidnapping by jurisdiction[edit]

Arrested kidnappers in Rio lying on the ground

England and Wales[edit]

Kidnapping is an offence under the common law of England and Wales.

In R v D,[1] Lord Brandon said:

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.[2]

The following cases are relevant:

  • R v Reid [1973] QB 299, [1972] 3 WLR 395, [1972] 2 All ER 1350, 56 Cr App R 703, [1972] Crim LR 553, CA
  • R v Wellard [1978] 1 WLR 921, [1978] 3 All ER 161, 67 Cr App R 364, CA
  • R v Cort [2003] EWCA Crim 2149, [2003] 3 WLR 1300, [2004] 1 Cr App R 18, CA
  • R v Hendy-Freegard,[3] [2007] EWCA Crim 1236, [2007] 3 WLR 488, The Times, May 30, 2007[4]

Kidnapping of children

In all cases 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 young 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.[5] 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.[6]

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.[5]

Charging child abduction and kidnapping in the same indictment

See R v C [1991] 2 FLR 252, [1991] Fam Law 522, CA

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.[7]

Mode of trial

Kidnapping is an indictable-only offence.[8]

Sentence

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.[9]

See:

  • R v Spence and Thomas, 5 Cr App R (S) 413, [1984] Crim LR 372, CA
  • Crown Prosecution Service sentencing manual[10]

CPS guidance

See:

  • Prosecuting cases of child abuse[11]
  • Offences against the person[12] (see the section headed "other relevant offences")

It invariably includes committing false imprisonment, which is the common-law offence of intentionally or recklessly detaining the victim without lawful authority. The use of force to take and detain will also be regarded as an assault, and other, related offences may also be committed before, during, or after the detention.[citation needed]

A parent should only be prosecuted for kidnapping his 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".[5][13]

The Netherlands[edit]

Article 282 prohibits hostaging (and kidnapping is a kind of hostaging).[14]

  • Part 1 allows sentencing kidnappers to maximum imprisonment of 8 years or a fine of the fifth category.[15]
  • Part 2 allows maximum imprisonment of 9 years or a fine of the fifth category[15] if there are serious injuries.
  • Part 3 allows maximum imprisonment of 12 years or a fine of the fifth category[15] 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 States[edit]

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.[16] 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).

In 2010 the United States was ranked sixth in the world for kidnapping for ransom, according to the available statistics (after Colombia, Italy, Lebanon, Peru, and the Philippines).[17]

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". . If true, this would have been the highest rate of any US city and second in the world only to Mexico City.[18] 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.[19]

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.[20]

According to the department of justice kidnapping makes up 2% of all reported violent crimes against juveniles.[18]

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.

Named forms[edit]

Thought to be a bride kidnapping in-progress in Central Asia, circa 1870.
  • Bride kidnapping is a term often applied loosely, to include any bride "abducted" against the will of her parents, even if she is willing to marry the "abductor". It still is traditional amongst certain nomadic peoples of Central Asia. It has seen a resurgence in Kyrgyzstan since the fall of the Soviet Union and the subsequent erosion of women's rights.[21]
  • Express kidnapping is a method of abduction used in some countries, mainly from Latin America,[22] where a small ransom, that a company or family can easily pay, is demanded.
  • Tiger kidnapping is taking a hostage to make a loved one or associate of the victim do something: e.g. a child is taken hostage to force the shopkeeper to open the safe. The term originates from the usually long preceding observation, like a tiger does on the prowl.

Statistics[edit]

Global Kidnapping hot-spots
  1999[23] 2006[24]
1 Colombia Mexico
2 Mexico Iraq
3 Brazil India
4 Philippines South Africa
5 Venezuela Brazil
6 Ecuador Pakistan
7 Russia and CIS Ecuador
8 Nigeria Venezuela
9 India Colombia
10 South Africa Bangladesh

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.[25][26] In 2004, it was Mexico,[27] and in 2001, it was Colombia.[28] 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.[29] However by 2006, the number of kidnappings in Colombia had declined to 687 and it continues to decline.[30] Mexican numbers are hard to confirm because of fears of police involvement in kidnapping.[31] "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."[24]

In 2009, the Los Angeles Times named Phoenix, Arizona[32] 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.[33]

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).[34]

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]

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.[35]

Criminal gangs are estimated to make up to $500 million a year in ransom payments from kidnapping.[36]

Kidnapping has been identified as one source by which terrorist organizations have been known to obtain funding.[37] 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.

See also[edit]

References[edit]

  1. ^ R v D [1984] AC 778, [1984] 3 WLR 186, [1984] 2 All ER 449, 79 Cr App R 313, [1984] Crim LR 558, HL, reversing [1984] 2 WLR 112, [1984] 1 All ER 574, 78 Cr App R 219, [1984] Crim LR 103, CA
  2. ^ R v D [1984] AC 778 at 800, HL
  3. ^ "Hendy-Freegard v R [2007] EWCA Crim 1236 (23 May 2007)". Bailii.org. Retrieved 2012-05-14. 
  4. ^ Chris Johnston. "The Times | UK News, World News and Opinion". Business.timesonline.co.uk. Retrieved 2012-05-14. 
  5. ^ a b c R v D [1984] AC 778, HL
  6. ^ R v D [1984] AC 778 at 806, HL
  7. ^ The Child Abduction Act 1984, section 5
  8. ^ "Kidnapping - False Imprisonment:Offences against the Person: Sentencing Manual: Legal Guidance: The Crown Prosecution Service". Cps.gov.uk. 2010-03-31. Retrieved 2012-01-20. 
  9. ^ R v Morris [1951] 1 KB 394, 34 Cr App R 210, CCA
  10. ^ "Kidnapping - False Imprisonment: Offences against the Person: Sentencing Manual: Legal Guidance: The Crown Prosecution Service". Cps.gov.uk. 2011-06-24. Retrieved 2012-05-14. 
  11. ^ "Legal Guidance:The Crown Prosection Service: Prosecuting Cases of Child Abuse". Cps.gov.uk. Retrieved 2012-05-14. 
  12. ^ "Offences against the Person: Legal Guidance: The Crown Prosecution Service". Cps.gov.uk. Retrieved 2012-05-14. 
  13. ^ Gary Slapper (23 August 2007). "The Law Explored: abduction and false imprisonment". The Times (London). Retrieved 2011-01-09. 
  14. ^ http://wetten.overheid.nl/BWBR0001854/TweedeBoek/TitelXVIII/Artikel282/geldigheidsdatum_25-12-2012
  15. ^ a b c € 78,000
  16. ^ The Gale Group (2008). West's Encyclopedia of American Law (2nd ed.). Retrieved 2011-01-09. 
  17. ^ "Business Horizons". FindArticles.com. 14 May 2011. [dead link]
  18. ^ a b "Project America: Crime: Crime Rates: Kidnapping". Project.org. Retrieved 2012-05-14. 
  19. ^ Ross, Brian (2009-02-11). "Kidnapping Capital of the U.S.A.". ABC News. Retrieved 2013-02-05. 
  20. ^ "Chowchilla kidnap, Crime Library website". Crimelibrary.com. 1976-07-15. Retrieved 2012-01-20. 
  21. ^ "Bride Kidnapping - a Channel 4 documentary". Channel4.com. 
  22. ^ Garcia Jr, Juan A. "Express kidnappings". Thepanamanews.com. Retrieved December 7, 2006. 
  23. ^ Rachel Briggs (Nov 2001). "The Kidnapping Business". Guild of Security Controllers Newsletter. Retrieved 2011-01-10. 
  24. ^ a b IKV Pax Christi (July 2008). "Kidnapping is a booming business". Retrieved 2011-01-10. 
  25. ^ "Counterpunch.org". Counterpunch.org. 2004-09-30. Retrieved 2012-01-20. 
  26. ^ NGO Coordination committee for Iraq[dead link]
  27. ^ "Highbeam.com". Highbeam.com. Retrieved 2012-01-20. 
  28. ^ "news.bbc.co.uk". BBC News. 2001-06-27. Retrieved 2012-01-20. 
  29. ^ "Facts about Kidnapping". Free Legal Advice. Retrieved 2011-01-09. 
  30. ^ "SITUACIÓN DE LAS VÍCTIMAS CAUTIVAS DURANTE EL PERIODO 1996-2005" (PDF). Retrieved 2012-01-20. 
  31. ^ Dickerson, Marla; Sanchez, Cecilia (Aug 5,2008). "Mexican police linked to rising kidnappings". LA Times. Retrieved 2011-01-10. 
  32. ^ Quinones, Sam (2009-02-12). "Phoenix, kidnap-for-ransom capital". Latimes.com. Retrieved 2012-01-20. 
  33. ^ http://www.justice.gov/oig/grants/2012/g6012006.pdf
  34. ^ "Statistics: Missing children". National Center for Missing and Exploited Children. Retrieved 2010-01-09. 
  35. ^ "Unprecedented increase in Somali pirate activity". Commercial Crime Services. 21 Oct 2009. Retrieved 2011-01-09. 
  36. ^ "Kidnap and ransom market value". 
  37. ^ Perri, Frank S., Lichtenwald, Terrance G., and MacKenzie, Paula M. (2009). "Evil Twins: The Crime-Terror Nexus" (PDF). Forensic Examiner. pp. 16–29. 

Further reading[edit]

External links[edit]