NCJ Number
62392
Date Published
1979
Length
12 pages
Annotation
REFORM IN BRITISH LAW REGARDING UNLAWFUL DETENTION AND KIDNAPPING IS DISCUSSED.
Abstract
THE CURRENT DEFINITION OF UNLAWFUL DETENTION PROVIDES THAT THE VICTIM MUST GIVE CONSENT, UNLESS IT BE OBTAINED UNDER DURESS. PROVISION SHOULD BE MADE FOR PROSECUTION WHEN CONSENT IS OBTAINED BY FRAUD. THE MOST SERIOUS FLAW IN CURRENT PROPOSALS FOR REFORMING DETENTION OFFENSES IS THE INSISTENCE UPON PERPETUATING A SEPARATION BETWEEN THE OFFENSES OF UNLAWFUL DETENTION AND KIDNAPPING. THE REASON FOR THE DIVISION OF THESE OFFENSES IN COMMON LAW IS THE EVALUTION OF KIDNAPPING AS A SPECIALIZED FORM OF MISBEHAVIOR IN THE LATE 17TH CENTURY. SINCE THEN, HOWEVER, KIDNAPPING HAS CHANGED FUNDAMENTALLY, SO THAT IN ITS MODERN VERSION IT HAS LITTLE IN COMMON WITH THE PREVIOUS ACTIVITY WHICH SPAWNED THE LAW. WITH THE ABANDONMENT OF THE NEED TO SHOW TRANSPORTATION OF THE VICTIM ABROAD, THE OVERLAP WITH FALSE IMPRISONMENT HAS BEEN EXTENSIVE. THERE IS LITTLE NEED FOR A LAW PROSCRIBING SIMPLE CRIMINAL DETENTIONS. A SINGLE OFFENSE OF DETENTION WOULD CONSIST OF THE CONFINEMENT OF A PERSON AGAINST HIS OR HER WILL. THIS BASIC OFFENSE WOULD BE PUNISHABLE BY A MAXIMUM OF 3 YEARS' IMPRISONMENT. WITHIN THAT ONE PROVISION, BUT DESCRIBED UNDER SEPARATE SUB-HEADINGS, AGGRAVATED VERSIONS OF THE BASIC OFFENSE COULD BE PUNISHABLE BY LIFE IMPRISONMENT. AGGRAVATION WOULD BE CONSTITUTED EITHER BY THE MENS REA OF THE ACCUSED (FOR EXAMPLE, THE INTENT TO HOLD THE VICTIM FOR RANSOM) OR BY THE ACTUS REUS OF THE DETENTION (FOR EXAMPLE, WHERE IT WAS EFFECTED BY FORCE OR DRUGS). FOOTNOTES ARE PROVIDED. (RCB)