Searching for legal certainty in the confusion between abduction, kidnapping and human trafficking

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Abstract

Considerable confusion has emerged between common-law abduction, kidnapping and human trafficking in South African law and the application of the law regarding these offences. The purpose of this article is to investigate by means of a qualitative literature review and legal analyses the links, intersections and muddling of these offences and how these factors impact legal certainty. The principle of legal certainty, underpinned by the Constitutional Court, is a cornerstone of South African law and bolsters transparency, predictability, fairness and justice. However, legal certainty is not entirely a rigid concept, for the law continuously adapts to changing values and developments. Importantly, certainty about the law and its contents remains crucial for citizens to enable them to avoid conduct that will make them criminally liable.

Abduction, kidnapping and human trafficking are indeed recognised as separate, independent offences in South African law, each with its own unique features. An analysis of the essence of each of the offences reveals profound differences between them. Apart from the diverse elements of their legal definitions, each of these offences serves a specific purpose by protecting distinct legal interests. The offence of abduction protects parents’ rights to the factual exercising of control over their unmarried, minor children as well as to consent to such children’s marriage. Different from abduction, the offence of kidnapping has a twofold character in that it protects more than one legal interest. Firstly, it protects all persons’ freedom of movement and, secondly, it protects parents’ control over their minor children.

Importantly, the crimes of abduction and kidnapping in criminal law must be distinguished from child abduction or child kidnapping in terms of the Hague Convention on the Civil Aspects of International Child Abduction. This treaty facilitates the return of a child who was wrongfully removed by a parent without the other parent’s consent in contravention of an existing agreement between the parents.

In contrast to the longstanding abduction and kidnapping offences, the human trafficking offence was established only more recently by the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (Trafficking Act), which came into operation on 9 August 2015. This law criminalises all types of human trafficking, irrespective of the age or gender of the victim.

The definition of “trafficking in persons” or human trafficking comprises three main components: the conduct, the means and the exploitative purpose. In short, a conviction on human trafficking requires that the perpetrator commits any of the nine prohibited acts, including recruiting, transporting, selling or harbouring the victim, by using any of the ten listed means, such as force, deceit or abuse of power, with the purpose of exploiting the victim. Where children are trafficked, however, the international standard expressly waives the “means” definitional component and requires only the prohibited conduct and the exploitative purpose. Unfortunately, some uncertainty prevails, for the Trafficking Act does not explicitly clarify what elements must be proven when a child is trafficked.

The well-defined legal differences between the three offences may lead to the immediate conclusion that these offences can hardly be confused with one another. However, in-depth scrutiny of the law unveils several dilemmas.

One dilemma that hampers legal certainty is the conceptual confusion that exists in relation to kidnapping. This problem has arisen from the historical development of the common-law crime known as plagium and has resulted in the use of various names for this offence, such as kidnapping, childstealing and manstealing. It is problematic that different terms for the same offence are still included in the Criminal Procedure Act 51 of 1977. The corresponding terms ontvoering, kinderdiefstal and menseroof respectively are also incorporated in the Afrikaans version of this act.

Despite the clear differences between abduction and kidnapping, there is also some similarity in that the removal of a child from the parents’ authority forms part of both crimes. Still, this aspect should not result in the confusion of kidnapping with abduction. While in abduction the child must be removed with the specific purpose of enabling someone to marry or have sexual intercourse with the child, in kidnapping the intent is to remove the child from the parents’ control, and the motive for the removal is immaterial. Apart from this issue, investigation further reveals that the two offences may indeed overlap in certain circumstances. In addition, a serious concern has been identified in case law. In some court cases a clear distinction between abduction and kidnapping is lacking, the elements of the offences are confused, or the offences are even conflated with each other. This situation undermines legal certainty.

Juxtaposing the statutory, treaty-based offence of human trafficking with the common-law offences of abduction and kidnapping reveals a list of differences. The differences are based mainly on the comprehensive provisions concerning human trafficking embedded in the Trafficking Act, which include the introduction of the human trafficking and other related crimes with accompanying stringent penalties and the legal duty to report human trafficking. Different from the abduction and kidnapping offences, the act further provides in detail for victims, including victim-centred services, compensation, temporary visas for a recovery and reflection period, and protection of victims against criminal prosecution, unauthorised access and deportation.

Despite these stark differences, the Trafficking Act has also introduced a connection between human trafficking and the other two offences in that the act incorporates both common-law crimes in the definition of human trafficking. Both abduction and kidnapping are included in the list of prohibited means for committing the unlawful trafficking act. This connection initiated by the Trafficking Act may result in uncertainties and impede the distinction between the three crimes.

Investigation of the aberrant forms of the Nguni tradition of ukuthwala reveals another dilemma. The use of distorted, coercive and violent forms of ukuthwala is often enmeshed with abduction, kidnapping and human trafficking. Although case law has provided guidelines on some of the complex issues, legal uncertainty still prevails regarding others.

Apart from detailing the distinct differences between abduction, kidnapping and human trafficking, this article brings to light overlapping and connecting relationships between these offences. Particularly important is the finding that these offences are occasionally interwoven and muddled in case law and legislation. The inconsistent and imprecise application of the law regarding these offences has resulted in ambiguities. This dilemma obstructs legal certainty, which requires the law to be clear, predictable and applied consistently. Finally, in the quest to strengthen legal certainty, recommendations are made for addressing the uncertainties and confusion concerning abduction, kidnapping and human trafficking.

Keywords: abduction; human trafficking; kidnapping; Prevention and Combating of Trafficking in Persons Act; ukuthwala

 

Lees die volledige artikel in Afrikaans

Op soek na regsekerheid in die warboel van abduksie, menseroof en mensehandel

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