Criminal Law

An introduction to the laws relating to abductions

Published in: August 2017

In terms of criminal offences, abduction is probably high on the list of crimes that a person would not like to be a victim of. It probably goes without saying that abduction is an offence in all jurisdictions, and this piece will explore the elements associated with the offence of abduction in Australia.

The law

Australian legislation makes it an offence for anyone to take or detain a person with the intent of marriage or of having sexual intercourse. In relation to children, legislation has created a separate offence when it comes to a child.

Turning to case law, in R v Politt (2007) 97 SASR 332; 171 A Crim R 150 at 352; 169, [107] White J (CCA) said the following in reference to the Criminal Law Consolidation Act 1935 s 59:

“It is not necessary to establish that an accused intended that sexual intercourse should occur contemporaneously with the taking away, but the intention to have sexual intercourse at some stage must exist at the time of the taking away.”

In relation to the taking part of the offence of abduction, the action can also include persuasion, inducement or blandishment, as Crisp J noted in R v Mejac [1954] Tas SR 26 at 31-32:

“Even if it be that the girl had, without any inducement from the prisoner, even unbeknownst to him, formed the inflexible resolve to leave home, and would have done so in any event, nevertheless if being apprised of her purpose, he actively co-operates in its execution whereby she leaves with him or goes to him pursuant to their mutual arrangement using money or facilities provided by him for the purpose, there would be taking within the meaning of the Act.”

Can consent be a defence to abduction?

Generally speaking, consent may not be used as a defence. In R v A [2000] 2 All ER 177; [2000] 1 Cr App R 418 at 182; 424 (CA), it was held that the “act or acts of the appellant must be an effective cause of the child accompanying him.” The English Court of Appeal reasoned that the child in the matter was not capable of consent due to their age. 

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