Abduction for purposes of Marriage or Sexual connection

Question 1

Abduction for purposes of Marriage or Sexual connection

Answer 1

Section 208, Crimes Act 1961
Penalty: 10 years
Unlawfully
Takes away
or Detains
A person
Without his or her consent
or with his or her consent obtained by fraud
or with his or her consent obtained by duress-
a)with intent to marry him or her
b) with intent to have sexual connection with him or her
c) with intent to cause him or her to be married or to have sexual connection with some other person

Question 2

Abduction for purposes of Marriage or Sexual connection – Unlawfully Case Law

Answer 2

Where a person is taken against their will with one of the specific criminal intent
R v Chartrand
Unlawfully means “without lawful justification, authority or excuse”

Question 3

Abduction for purposes of Marriage or Sexual connection - takes away Case law

Answer 3

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

Question 4

Case law for difference between detaining and taking away

Answer 4

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 women 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 difference offence

Question 5

Abduction for purposes of Marriage or Sexual connection – detains Case law

Answer 5

doing something to impose a constraint or restraint on the person detained
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

Question 6

Abduction for purposes of Marriage or Sexual connection - without his or her consent

Answer 6

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 voluntary given by a person in a position to form a rational judgement

Question 7

Abduction for purposes of Marriage or Sexual connection - with intent to marry him or her

Answer 7

R v Mohi
The offence is committed at the time of taking away, so long as there is, at that moment, the necessary intent. It has never been regarded as necessary…that the Crown should show the intent was carried out

Question 8

Abduction for purposes of Marriage or Sexual connection - with intent to have sexual connection with him or her
sexual connection is defined by statute:

Answer 8

section 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
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus or-
(c) the continuation of connection of a kind described in paragraph (a) or (b)

Question 9

Abduction for purposes of Marriage or Sexual connection - with intent to cause him or her to be married to some other person

Answer 9

where the abductor takes away or detains a victim to enable another person to marry them

Question 10

Abduction for purposes of Marriage or Sexual connection - with intent to cause him or her to have sexual connection with some other person

Answer 10

intent is to enable another person to have sexual connection with the victim

Question 11

What must be proved for Abduction

Answer 11

For a conviction under s208 the Crown must prove that:

1. The defendant took away or detained a person;
2. The taking or detention was intentional or deliberate;
3. The taking or detention was unlawful;
4. The taking or detention was without that person’s consent (or with consent induced by fraud or duress);
5. The defendant knew that there was no consent to the taking or detention; and
6. The defendant intended to:
   (a) Marry the person taken or detained; or
   (b) Have sexual connection with the person taken or detained; or
   (c) Cause the person taken or detained to marry another person or to have sexual connection with another person.

Question 12

Unlawfully Case Law

Answer 12

R v Chartrand (1994) 91 CCC (3d) 396 (SCC)

Unlawfully means “without lawful justification, authority or excuse”.

Question 13

Taking away Case Law

Answer 13

R v Wellard [1978] 3 All ER 161
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”.

Question 14

Taking away vs detaining Case Law

Answer 14

R v Crossan [1943] NZLR 454 (CA)
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.”

Question 15

Detains case Law

Answer 15

R v Pryce [1972] Crim LR 307
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.

Question 16

Intent in Abduction/kidnapping Case Law

Answer 16

R v Mohi [1982] 1 NZLR 24
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.

Question 17

What must be proved for Kidnapping

Answer 17

For a conviction under s209 the Crown must prove that the:

1. Defendant took away or detained a person;
2. Taking or detention was intentional or deliberate;
3. Taking or detention was unlawful;
4. Taking was done without that person’s consent (or with consent induced by fraud or duress);
5. Defendant knew that there was no consent to the taking or detention; and
6. Defendant intended to:
   (a) Hold the person for ransom or to service; or
   (b) Cause the person to be confined or imprisoned; or
   (c) Cause the person to be sent or taken out of New Zealand.

Question 18

Act, Section, Penalty and legislation for Abduction of a Young Person under 16 years

Answer 18

Section 210, Crimes Act 1961
Abduction of young person under 16
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person.

Every one is liable to imprisonment for a term not exceeding 7 years who receives a young person, knowing that he or she has been unlawfully taken or enticed away or detained with intent to deprive a parent or guardian or other person having the lawful care or charge of him or her of the possession of him or her.

Question 19

What must be proved for 210(1)

Answer 19

1. The defendant took, enticed or detained a person under the age of 16 years;
2. The taking, enticement or detention was deliberate or intentional;
3. The taking, enticement or detention was from a person who had lawful care of the young person;
4. The defendant knew the other person had lawful care of the young person;
5. The taking, enticement or detention was “unlawful”; and
6. It was done with intent to deprive a parent, guardian” or other person having lawful care or charge of the young person” of possession of that young person.

Question 20

What must be proved for 210(2)

Answer 20

For a conviction under s 210(2) the Crown must prove that:

1. The defendant “received” a person under the age of 16;
2. The receiving was deliberate or intentional;
3. The defendant knew that the young person had been unlawfully taken, enticed away or detained by another from a person who had lawful possession of the young person; and
4. The defendant intended by reason of the receiving to deprive the person with lawful care of the possession of that young person

Question 21

What intents must be present must be present for 210(1)

Answer 21

intention to take, entice or detain a young person and also a specific intent to deprive the parent or other specified person of the possession of the child.

Question 22

What intents must be present must be present for 210(2)

Answer 22

include people who receive a young person without an intent to deprive the person with lawful care of possession provided the defendant knew that the person responsible for the taking had such an intent:

Question 23

Can a parent be charged with 210(1)

Answer 23

Yes - where their actions are unlawful; for example a father who takes his own child from its mother contrary to a Court Order.

Question 24

What is not a defence under s210

Answer 24

That the person under 16 years consented -it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion
That the offender believed that the young person was over 16 years.

Question 25

What must the offender know for the purposes of s210(2)

Answer 25

the offender must know that the young person they are receiving has been abducted / unlawfully taken

Question 26

What is a defence to s210

Answer 26

Statutory defence of good faith A defence against charges of kidnapping or abduction is a claim of good faith. In such a case it is up to the prosecution to establish that the defendant did not believe in good faith, as claimed, that they had the right of possession

Question 27

What is migrant smuggling

Answer 27

Migrant smuggling involves a person who has freely consented to be brought into New Zealand as an illegal immigrant and is not subjected to coercion or deception.

Question 28

What is people trafficking

Answer 28

People trafficking involves a person who is brought into New Zealand by means of coercion and/or deception. People are often trafficked in order to exploit them in the destination country, e.g. as forced labour, for removal of their organs or most commonly, for sexual exploitation

Question 29

What are the differences between migrant smuggling and people trafficking

Answer 29

The differences between the two offence types are: • consent • the purpose of the travel or movement • the relationship between the person moved and the people enabling the movement • violence, intimidation or coercion • liberty • profit.

Question 30

What is the difference between the definitions of hostage and victim (in kidnap for ransom)

Answer 30

Hostage - An individual who has been kidnapped. Victim - A person or organisation against whom a demand is directed, following a kidnapping.

Question 31

Definition of benefit

Answer 31

"benefit" means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration

Question 32

What must be proved for demanding with intent to steal

Answer 32

You must prove the identity of the suspect and that they, without claim of right and by force or with any threat, compelled any person to: • execute • make • accept • endorse • alter • destroy, any document capable of conferring a pecuniary advantage with intent to obtain any benefit.