SESSION 9. Confinement and kidnapping

OFFENSES AGAINST THE PERSON

CONFINEMENT AND KIDNAPPING

• Overview: Crimes that involve physical restraint and infringe upon victims' liberty.

• Classification:

  • Confinement: Generally a lesser included offense of kidnapping and considered to be graded lower.

  • Kidnapping: Involves illegal detention affecting personal liberty significantly and often carries heavier penalties.

MAIN ELEMENTS

Key Components

• Active Subject: Anyone can be the perpetrator, with the aggravation if they are a public official.

• Passive Subject: The person whose legal rights are protected (victim).

• Material Object: The victim of confinement or kidnapping.

• Type of Crime: Classified as a crime of result based on achieving the outcome of unlawful restraint.

• Injured: The individual experiencing the unlawful confinement.

LEGAL CONCEPTS

Protected Legal Good

• Focuses on ambulatory freedom representing the fundamental right to freedom, closely associated with life and health.

• Valid consent can eliminate the unlawful nature of confinement, as freely granted agreement allows for detention.

Typicity

• Objective Type: Criminal conduct includes any action that violates the freedom of movement.

• Subjective Type: Intent is crucial for the prosecution; reckless behavior typically does not lead to punishment.

ITER CRIMINIS (Criminal Process)

Permanent Consummation

• The crime begins when the subject loses their freedom.

• The act is not complete until the confinement ends, indicating continued criminality while the victim remains deprived of their liberty.

• Example: John confines Mary in his basement—crime commencement and endpoint depend on her release.

LAWFUL EXCUSES

• Instances where confinement may not be deemed unlawful:

  • Arrest by law enforcement.

  • Duties performed by prison officers.

  • Reasonable parental discipline or school discipline.

  • Transporting individuals who are ill or incapacitated.

  • Mental health professionals restraining patients.

CONFINEMENT

Definition and Characteristics

• Confinement: Locking up or detaining another individual, depriving them of freedom.

  • Actions involve enclosing or detaining a person against their will.

  • Consent is vital; absence or contradiction—without consent—makes it unlawful.

  • Confinement may overlap with other crimes (e.g., robbery, sexual assault).

Legal Grading

• Model Penal Code: Grades confinement as a third-degree felony.

• Factors for aggravation: Victim's youth, use of force or violence.

• Some jurisdictions require only general intent for false imprisonment.

SPECIFIC LAWS BY JURISDICTION

United States

• Required conditions for kidnapping: confinement of victim, potential movement called "asportation."

• Movement standards vary but slight movement is often enough to meet criteria.

• Specific legal frameworks address ransom scenarios.

Spain

• Law punishing unlawful detention with aggravating circumstances if additional conditions of coercion or public official involvement exist.

• Criteria include the length of detention, victim's status, and purpose of detention.

Canada

• Legal definitions for forcible confinement encompass lack of authority, intent to confine, and absence of victim consent.

  • Laws specify penalties for unlawful confinement.

EXAMPLES OF CONFINEMENT AND KIDNAPPING

Example Scenarios

• Scenario 1: Joseph forcibly confines Abby in a trunk and assaults her—analysis might differ based on jurisdiction.

• Scenario 2: Thomas locks Shawna in his vehicle against her will; legal implications in various jurisdictions need to be considered.

CASE EXAMPLE

• Frances G. Case: Legal implications of confinement where Frances locked her husband under duress, demonstrating dynamics of domestic restraint and eventual law enforcement intervention.