PL- Session 5- 135 Kidnapping, Coercion Flashcards
(20 cards)
What is the definition of RESTRAIN in Article 135- Kidnapping and Coercion?
To restrict a person’s movements INTENTIONALLY and UNLAWFULLY in such a way as to substantially interfere with the person’s liberty.
This includes:
* Moving the person from one place to another
* Confining them without consent.
Standard necessary for UNLAWFUL IMPRISONMENT
- Substantial restriction must be without consent and knowledge the restriction is unlawful
What constitutes substantial restriction without consent in Article 135- Kidnapping and Coercion
Substantial restriction is said to be without consent if it is accomplished by:
* use of physical force, intimidation, deception
* Any means whatsoever if victim is
1. A child under 16
2. An incompetent individual
What constitutes ABDUCT according to Article 135?
To RESTRAIN a person WITH INTENT to prevent his liberation by:
* Secreting them or holding them in a place where they are NOT LIKELY to be found
* Using/threatening to use DEADLY PHYSICAL FORCE
Standard necessary for KIDNAPPING
If ABDUCT is satisfied, RESTRAIN is also satisfied.
Who qualifies as a RELATIVE under Article 135?
- Parents
- Ancestors (grandparents)
- Brother
- Sister
- Uncle
- Aunt
Refers to relationship of defendant to victim NOT VICTIM TO DEFENDANT
This term is crucial for affirmative defenses in Kidnapping or Unlawful Imprisonment.
What is required for KIDNAPPING 2ND DEGREE?
A person commits this offense when they ABDUCT another person
Class B Felony
What is required for KIDNAPPING 1ST DEGREE?
A person ABDUCTS another with intent to compel a third person to:
* Pay/deliver money or property as ransom
* Engage in conduct (compel release of prisoner)
* Refrain from engaging in certain conduct (cancel a scheduled execution)
A Felony
There is no specified duration for the abduction.
What is the second way of committing Kidnapping 1st regarding a duration requirement?
An individual ABDUCTS another and the victim is RESTRAINED for more than 12 hours with the intent to do any of the following:
* Inflict PI upon the victim or violate them sexually
* accomplish or advance the cimmission of a felony
* terrorize the victim or a third person
* interfere with the performance of a governmental or political function
Abduction MUST be more than 12 hours, otherwise these circumstances constitute Kidnapping 2nd
What happens if a victim dies during or before returning from KIDNAPPING?
It constitutes KIDNAPPING 1ST DEGREE.
The length of the abduction does not affect this charge.
What is the affirmative defense for KIDNAPPING?
Defendant must prove he was a RELATIVE of the victim and his sole purpose was to assume control over the victim.
This applies to any prosecution for Kidnapping.
In a kidnapping 1st scenario when is a victim presumed deceased
When the persons whom the victim would have been certain to contact if they were alive and free to do so have not heard from the victim
What is the affirmative defense for Kidnapping?
IF the defendant can prove by a preponderance of the evidence :
* They are a relative of the victim
-and-
* Their sole purpose in abducting the victim was to assume control over them
Ex. Your daughter is in a cult and you believe she is brainwashed so you abduct them to bring them back to safety
What constitutes UNLAWFUL IMPRISONMENT 2ND DEGREE?
A person RESTRAINS another person, classified as a Class A Misdemeanor.
This is the less serious degree of unlawful imprisonment.
What is the difference between UNLAWFUL IMPRISONMENT 1ST and 2ND DEGREE?
1ST DEGREE involves circumstances exposing the victim to a RISK of SERIOUS PHYSICAL INJURY.
1ST DEGREE is a Class E Felony.
What is the affirmative defense for Unlawful Imprisonment?
IF the defendant can prove by a preponderance of the evidence :
* They are a relative of the victim
-and-
* Their sole purpose in abducting the victim was to assume control over them
-and-
* Victim is under 16
Ex. Your daughter is in a cult and you believe she is brainwashed so you abduct them to bring them back to safety
What is CUSTODIAL INTERFERENCE 2ND DEGREE?
- Being a relative of a child under 16, and intending to hold such child permanently or for a protracted period and knowing they have no legal right to do so, an individual takes or entices such child from their lawful custodian
-or- - Kowing that they have no legal right to do so, an individual takes or entices from lawful custody:
1. an incompetent person
2. any other person entrusted by authority of law to the custody of a person or institution
A Misd
This can involve relatives or non-relatives.
What differentiates CUSTODIAL INTERFERENCE 1ST DEGREE from 2ND DEGREE?
1ST DEGREE involves circumstances exposing the victim to a risk:
* That their safety will be endangered
-or-
* That their health will be materially impaired
Note: Another difference involves intending to remove the victim permanently from the state
Ex. Taking a sick child from a hospital
Class E Felony.
Define COERCION.
Compelling a person to DO something he has a right NOT to do or NOT to do something he has a right to do.
Compulsion is achieved by threatening the victim.
What are the threats involved in COERCION 3RD DEGREE?
- Cause PHYSICAL INJURY
- Cause DAMAGE to PROPERTY
- Engage in CRIME
- Accuse of a CRIME
- Expose SECRET
- Cause STRIKE or BOYCOTT
- Give FALSE TESTIMONY
- Use or abuse POSITION as PUBLIC SERVANT
- Report immigration status
This charge involves lesser threats.
What constitutes COERCION 2ND DEGREE?
Threats of
* Cause PHYSICAL INJURY
* Cause DAMAGE to PROPERTY
* Engage in CRIME
* Accuse of a CRIME
* Expose SECRET
* Cause STRIKE or BOYCOTT
* Give FALSE TESTIMONY
* Use or abuse POSITION as PUBLIC SERVANT
* Report immigration status
USED TO COMPEL AN ARTICLE 130 SEX ACT
What are the threats involved in COERCION 1ST DEGREE?
- Cause PHYSICAL INJURY
- Cause DAMAGE to PROPERTY
-or-
Any of the Coercion 2nd threats compells the victim to: - Commit/attempts a FELONY
- Cause/attempts PHYSICAL INJURY
- Violate duty as PUBLIC SERVANT
PI and PROP DAMAGE same as 3rd in these instances 1st can always be char
This charge involves more serious threats
PI and PROP DAMAGE same as 3rd in these instances 1st can always be charged deft may end up pleading to Corecion 3rd
