| Criminal law |
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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 is an offence under the common law of England and Wales.
In R v D, 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.
The following cases are relevant:
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 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. 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.
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.
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.
Mode of trial
Kidnapping is an indictable-only offence.
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.
See:
CPS guidance
See:
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.
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".
Article 282 prohobits hostaging (and kidnapping is a kind of hostaging).
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. There are several deterrents to kidnapping in the United States of America. Among these are:
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).
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. 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.
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.
According to the department of justice kidnapping makes up 2% of all reported violent crimes against juveniles.
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.
| 1999 | 2006 | |
|---|---|---|
| 1 | Colombia | Mexico |
| 2 | Mexico | Iraq |
| 3 | Brazil | India |
| 4 | Philippines | South Africa |
| 5 | Venezuela | Brazil |
| 6 | Ecuador | Pakistan |
| 7 | Former Soviet Union | 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. In 2004, it was Mexico, and in 2001, it was Colombia. 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. However by 2006, the number of kidnappings in Colombia had declined to 687 and it continues to decline. Mexican numbers are hard to confirm because of fears of police involvement in kidnapping. "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."
In 2009, the Los Angeles Times named Phoenix, Arizona 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.
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).
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.
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.
Criminal gangs are estimated to make up to $500 million a year in ransom payments from kidnapping.
Kidnapping has been identified as one source by which terrorists organizations have been known to obtain funding. 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.
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