Abduction for purposes of marriage or SC Flashcards
Abduction for purposes of Marriage or SC
Section and Penalty
Section 208 (a) or (b) or (c) Crimes Act 1961
14 years imprisonment
Abduction Ingredients
1) Unlawfully
2) Takes away or Detains
3) A Person
4) Without his or her consent
OR
With his or her consent obtained by fraud or duress
5) With Intent to:
a) marry him or her or
b) have sexual connection with him or her or
c) cause him or her to be married to or to have sexual connection with some other person
Unlawfully
Without lawful justification, authority or excuse
If defended, crown to prove act was unlawful beyond reasonable doubt
R v Wellard
The essence of the offence of kidnapping is the deprivation of liberty coupled with a carrying away from the place where the victim wants to be.
Baby taken from mother driven somewhere else, female walked by “officer” to his car
R v Crossan
Taking away and detaining are “separate and distinct offences. The first consists of taking the victim away. The second of detaining her.
The first offence was complete when the prisoner took the woman away against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.
R v Pryce
Detaining is an active concept meaning to keep in confinement or custody. This is to be contrasted to the passive concept of harbouring or mere failure to hand over.
Person
Gender neutral proven by judicial notice or circumstantial evidence.
Consent
And
R v Cox
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
R v Cox
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to a rational judgement.
To Obtain Consent by FRAUD
Defendant deceived the victim into giving consent by misrepresenting the facts or their intentions.
Fraudulently by repainting himself as a police officer
Stating bus broken down which it hadn’t.. picking up females.
To obtain consent by DURESS
Victim may acquiesce to an offenders demand based on fear of the consequences if they refuse
Actual or implied threat of force to the victim or another person. Can also include other forms of pressure or coercion.
Child under 16
Section 209A Crimes Act 1961
For the purposes of S208 and S209, a person under the age of 16 years cannot consent to being taken away or detained.
Intent
Firstly there must be an intention to commit the act
Secondly an intention to get a specific result.
Mohi
The offence is complete once there has been a period of detention or a taking accompanied by the necessary intent, regardless of whether that intent was carried out.
R v Waaka
Intent may be formed at any time during the taking away. If a taking away commences without the intent to have intercourse, but that intent is formed during the taking away, then that is sufficient for the purposes of the section.
a) Marry him or her
In this context, “to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.
b) Have Sexual Connection With Him or her
Sexual Connection - Sec 2 Crimes Act 1961
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of-
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person;
or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b).
c) Cause to be married or have sexual connection with some other person:
Of note only
This relates to situations where the abductor takes away or detains a victim to enable another person to marry OR have sexual connection with the victim.
Ie detain for forced marriage
or take away to gang pad for rape
Abduction liability
Unlawfully - meaning Takes away -R v Crossan -R v Wellard OR Detains - R v Crossan - R v Pryce A person - meaning Without his/her consent - Consent meaning - R v Cox (consent) OR With his/her consent obtained by fraud or duress - Consent meaning - R v Cox (consent) -Fraud meaning (if appropriate) - Duress meaning (if appropriate) - Child Consent With intent to: - intent meaning - Mohi - R v Waaka Mary him/her - Marry meaning OR Have S/C with him/her - SC meaning OR cause him/her to be married or have S/C with some other person - meaning
