ABDUCTION

Question 1

Section, Act, Penalty

Elements

Answer 1

208 CA 1961
Unlawfully
Takes away or detains
A person
Without their consent or with consent obtained by fraud or duress
A) with intent to go through a form of marriage or civil union with that person
B) with intent to have sexual connection with that person
C) with intent to cause that person to go through form of marriage or civil union or to have sexual connection with some other person

Question 2

Unlawfully

Answer 2

Without lawful justification, authority or excuse

Question 3

Takes Away

Answer 3

Physically removing from one place to another

Question 4

Takes Away - Case Law

Answer 4

Wellard
The essence of the offence of kidnapping is the deprivation of liberty coupled with carrying away from the place where the victim wants to be.

Question 5

Taking away vs Detaining - Case Law

Answer 5

Crossan
Taking away and detaining are “separate and distinct offences. The first consists of taking the victim away. The second of detaining them.

Question 6

Detaining - Case Law

Answer 6

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

Person

Answer 6

Gender neutral proven by judicial notice or circumstantial evidence.

Question 7

Consent

Answer 7

A persons conscious and voluntary agreement to something desired ir proposed by another

Question 8

Consent - Case Law

Answer 8

Cox
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person to form a rational judgement.

Question 9

Consent obtained by FRAUD

Answer 9

Consent obtained by the misrepresentation of the facts or the offenders intentions.

Question 10

Consent obtained by Duress

Answer 10

Actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion.

Question 11

Intent

Answer 11

In a criminal law context there are two specific types of an intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.

Question 12

Offence Complete - Case Law

Answer 12

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.

Question 13

Intent - Case Law

Answer 13

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.

Question 14

Children under 16

Answer 14

For the purposes of S208 and S209, a person under the age of 16 years cannot consent to being taken away or detained

Question 15

A) Marry him or her

Answer 15

To marry in accordance with the provisions of the Marriage Act 1955.

Question 16

b) Have Sexual Connection With Him or her

Answer 16

(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).

Question 17

c) Cause to be married or have sexual connection with some other person:

Answer 17

This relates to situations where the abductor takes away or detains a victim to enable another person to marry them.