Kidnapping/Abduction Short Answers

Question 1

What must be proved for Section 208 and 209 charges

Answer 1

• The defendant took away or detained a person
• The taking or detention was intentional or deliberate
• The taking or detention was unlawful
• The taking or detention was without that persons consent (or was obtained by fraud or duress)
• The defendant knew that there was no consent to the taking or detention and;
• The defendant intended either (a)(b)or(c).

Question 2

Taking away vs detaining

Answer 2

Two separate offences. Where there is evidence of taking away and detaining, two charges should be filed.

Question 3

Explain detains

Answer 3

Active concept rather than a passive one. It involves doing something to impose a constraint or restraint on the person detained.

No minimum period defined.

Question 4

Explain intent to hold for ransom and service

Answer 4

Kidnapping often used as a means to extort money from the victims family or from people wanting victim returned.

A ransom is a sum of money demanded or paid for the release of a person being held captive

To service is where the offender intends to keep victim as a servant or slave

Question 5

Confining a person

Answer 5

Can include restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them.

Question 6

To imprison

Answer 6

Means to put a person in prison or to confine them as if in prison

Question 7

Abduction of a young person. It is immaterial whether…

Answer 7

the young person consents, or is taken or goes at his or her own suggestion.

It is immaterial whether the offender believes the young person to be of or over the ages of 16.

Question 8

What must be proved for 210 (1)

Answer 8

• The defendant took, enticed or detained a person under the age of 16
• The taking, enticement or detainment was deliberate or intentional
• The taking, enticement or detention was from a person who had lawful care of the young person
• The defendant knew the other person had lawful care of the young person
• The taking, enticement or detention was “unlawful” and
• 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 9

What must be proved for 210 (2)

Answer 9

• The defendant received a person under the age of 16 years
• The receiving was deliberate or intentional
• The defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful charge of him or her, of the possession of that young person
• The defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person

Question 10

Person having lawful care or charge

Answer 10

The offence is not against the person of the child, but rather against the custodial rights of parent or guardian.

Also protects rights of those with lawful temporary custody, such as OT.

Depriving parent of possession may not be offenders primary intention.

Question 11

How to prove age in young person cases

Answer 11

Usually involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate. Ideally, the independent evidence will be that of a parent, but that will not always be possible.

Question 12

It is immaterial that the child consents…

Answer 12

to or even instigates the departure, although a person takes a child only if his or her conduct is an effective cause of it

Question 13

Explain receiving a child as per subsection (2)

Answer 13

Cases where a parent takes a child away from the other parent and hides them at the grandparents etc. If the grandparents knew that child taken unlawfully, they could be liable for receiving the child.

Question 14

Belief that a person is over 16 is no defence

Answer 14

It is immaterial whether the offender believes the young person to be of or over the age of 16

Question 15

Statutory defence of good faith

Answer 15

A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or 210 because he or she gets possession of the young person

Prosecution must negate good faith beyond reasonable doubt.

Question for the jury will not be whether the defendant was entitled to possession of the child or young person, but whether it is shown beyond reasonable doubt that the defendant did not believe in good faith that he or she was entitled