ABDUCTION


ABDUCTION (or Manstealing; Heb. גְּנֵבַת נֶפֶשׁ, genevat nefesh), stealing of a human being for capital gain. According to the Bible, abduction is a capital offense. "He who kidnaps a man – whether he has sold him or is still holding him – shall be put to death" (Ex. 21:16); and, "If a man is found to have kidnapped a fellow Israelite, enslaving him or selling him, that kidnapper shall die" (Deut. 24:7). The first passage appears to prohibit the abduction of any person, while the latter is confined to Israelites only; the first appears to outlaw any abduction, however motivated (cf. Codex Hammurapi, 14), while the latter requires either enslavement or sale as an essential element to constitute the offense. Talmudic law, in order to reconcile these conflicting scriptural texts or to render prosecution for this capital offense more difficult (or for both purposes), made the detention, the enslavement, and the sale of the abducted person all necessary elements of the offense, giving the Hebrew "and" (which in the translation quoted above is rendered as "or") its cumulative meaning (Sanh. 85b, 86a). Thus, abduction without detention or enslavement or sale, like enslavement or sale or detention without abduction, however morally reprehensible, was not punishable (even by *flogging), because none of these acts was in itself a completed offense. On the other hand, even the slightest, most harmless, and casual use of the abducted person would amount to "enslavement"; and as for the "sale," it does not matter that the sale of any human being (other than a slave) is legally void (BK 68b). In this context, any attempt at selling the person, by delivering him or her into the hands of a purchaser, would suffice. However, the attempted sale has to be proved in addition to the purchaser's custody, because giving away the abducted person as a gift would not be a "sale" even for this purpose (Rashba to BK 78b). The term rendered in the translation quoted above as "kidnap" is ganov ("steal"). The injunction of the Decalogue, "Thou shalt not steal" (Ex. 20:13), has been interpreted to refer to the stealing of persons rather than the stealing of chattels. The reason for this is both because the latter is proscribed elsewhere (Lev. 19:11), and because of the context of the command next to the interdictions of murder and adultery, both of which are capital offenses and offenses against the human person (Mekh. Mishpatim 5). It has been said that this interpretation reflects the abhorrence with which the talmudic jurists viewed this particular crime; alternatively, it has been maintained that the reliance on the general words "Thou shalt not steal" made the interdiction of manstealing applicable also to non-Jews and hence amounted to a repudiation of slave trading, which in other legal systems of the period was considered wholly legitimate.

There is no recorded instance of any prosecution for abduction – not, presumably, because no abductions occurred, but because it proved difficult, if not impossible, to find the required groups of *witnesses. These would have been required not only for each of the constituent elements of the offense, but also for the prescribed warnings that first had to be administered to the accused in respect of the abduction, the detention, the enslavement, and the sale, separately. The classical instance of abduction reported in the Bible is Joseph's sale into slavery (Gen. 37; cf. 40:15, "I was kidnapped from the land of the Hebrews"). In the Talmud there is a report from Alexandria that brides were abducted from under the canopy (BM 104a; Tosef. Ket. 4:9), not necessarily for enslavement or sale, but (as it appears from the context) for marriage to the abductors.

[Haim Hermann Cohn]

In Israeli Law

TRAFFICKING IN HUMAN BEINGS TO ENGAGE IN PROSTITUTION

At the beginning of 2000, in the framework of Amendment 56 of the Penal Law, provisions were enacted that prohibited trafficking in human beings for engagement in prostitution. Pursuant to this amendment, section 203a of the Penal Law established a maximum punishment of 16 years' imprisonment for anyone who "sells or purchases a person in order to engage him in prostitution or serving as a middleman in the selling or purchasing of a person for this purpose."

Trafficking in human beings has been prohibited since the very dawn of the history of Jewish Law, in the framework of the commandment of "Thou shall not steal" (Ex. 20:12; Deut. 5:16) and the prohibitions concerning abduction mentioned above. "Joseph's sale by his brothers was an ignominious episode of Jewish history and was regarded as having sealed the fate of the Ten Martyrs" (see Rubinstein). The Knesset's enactment of the aforementioned amendment was in accordance with Basic Law: Human Dignity and Freedom, sec. 2 of which states: "There shall be no violation of the life, body, or dignity of any person as such," while sec. 4 states that "All persons are entitled to protection of their life, body, and dignity."

Jewish Law's prohibition of abduction and the death penalty imposed on the abductor are only applicable upon the satisfaction of four cumulative conditions: an abduction of a human being; the abductee's detention in the abductor's premises; the abductee's enslavement by the abductor; and the abductee's subsequent sale to another (Maim., Yad, Genevah 9:2). Some of the geonim were lenient regarding the requirement that all four conditions be satisfied and convicted the abductor where he had abducted and sold, or abducted and enslaved (see in detail Halakhah Berurah, Sanh. 85b).

The Israeli legislator broadened the prohibition to include serving as a middleman, in addition to the elements of abduction, detention, and sale. Under Israeli Law both the abductor-seller and the buyer are equally culpable and share the same punishment, whereas under Jewish law the abductor is the sole offender. The need for deterrence led the Israeli legislator to broaden the circle of offenders, imposing criminal liability upon the seller, the middleman, and the buyer. With respect to punishment for trading in women, this facilitates punishment even if only some of those involved in the offense are actually caught, and even if the prime actor – the seller – is still at large (occasionally abroad) and hence difficult to capture. The Supreme Court stressed that the prohibition of trading in human beings is intended to prevent violations of human dignity, especially that of women sold for prostitution. Hence, section 203a of the Penal Law should be constructed broadly and applied to any transaction that results in a person being treated as property, be it by way of sale, day-hiring, borrowing, partnership, or any other creation of a proprietary connection to a person (Cr. A 11196/02 Prodental v. State of Israel, 57 (6) 40, per Justice Beinish).

CHILD ABDUCTION

The Hague Convention on the Civil Aspects of International Child Abduction was signed in 1980. In 1991, Israel incorporated the Convention's provisions into Knesset legislation and empowered the Family Courts to enforce them. The goal of the Convention was to secure the prompt return of illegally abducted children to their countries of residence prior to their abduction.

We already find a claim of child abduction in the Bible, where Laban complains about Jacob's flight from Aram Naharaim together with his wives and children (i.e., Laban's daughters and grandchildren). Upon finding Jacob at Mt. Gilead, Laban cries: "What have you done, that you have cheated me, and carried away my daughters like captives of the sword. Why did you flee secretly, and cheat me, and did not tell me, so that I might have sent thee away with mirth and songs, with timbrel and lyre? And why did you not permit me to kiss my sons and my daughters farewell? Now you have done foolishly" (Gen. 31:26–28).

The Convention's point of departure is the provision that abduction is a violation of one of the parent's custodial rights, "under the law of the State in which the child was habitually resident immediately before the removal or the retention" of the child (Article 3(a) of the Convention). Consequently, cardinal importance attaches to the determination of where the minor's habitual place of residence was, prior to the abduction. In one of the judgments given in the Jerusalem District Court, an halakhic principle was invoked in order to determine the minor's customary place of residence. The minor's parents were observant Jews. The father – then resident with his family in Oxford while writing his doctoral thesis – did not observe the Second Day of Festivals ordinarily observed by Jews living outside Israel. His adherence to the Israeli custom in this respect led the Court to infer that the locus of his life had remained in Israel. Consequently, the child's removal to Israel could not be regarded as abduction (F.A. 575/04 (Jer.) Anon. v. Anon.). In reaching this conclusion the Court adduced extensive halakhic material, from the Talmud (TB Pes. 51a, 52), Maimonides (Yad, Yom Tov 8:2), Shulḥan Arukh (OḤ 493:3), and the responsa (Radbaz, 4:73).

The Convention provides that there may be a justification for not returning the child if "it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views" (Article 13 of Convention, concluding phrase). One of the judgments includes a comprehensive discussion of how to determine whether the child is of an age and level that justifies taking account of his views. The Court noted that "in the State of Israel, as a Jewish state, consideration is accorded to the Jewish heritage, where the matter concerns consideration for the children's wishes and the age at which the law gives effect to the expression of their position" (F.A. (Jer) 621/04 Anon. v. Anon.). One of the sources upon which the decision was based was the mishnah in Niddah 5:6. This mishnah states that vows made by a girl aged 12 are considered efficacious, while between the ages of 11 and 12 the girl's level of intellectual maturity and comprehension are "examined." In the case of boys, his standing vis-à-vis vows is examined between the ages of 12 and 13, while after age 13 his vows too are fully efficacious, like those of a girl at age 12. The Babylonian Talmud ad loc. states that "the Holy One Blessed be He endowed woman with greater wisdom than the man," in light of the fact that the girl reaches maturity before the boy (cf. Torah Temimah, Gen. 2:22, §48). The District Court concluded that in the case in question, two of the four daughters were capable of expressing their position – which was against returning to the United States and in favor of staying in Israel. This position was adopted in consideration of their age, which is the age at which an undertaking for a vow is binding under Jewish Law. As such it is also an age at which the Court can form its impression that their wishes are of a nature that ought to be respected, pursuant to Article 13 of the Convention

The very enactment of the Hague Convention Law in Israel may be viewed as the endorsement of a fundamental principle of Jewish Law, namely, that the child is not an object to be moved from country to country, and abducted by one parent against the wishes of the second parent; but an independent legal entity, vested with both standing and rights (see also *Parent and Child).

[Moshe Drori (2nd ed.)]

BIBLIOGRAPHY:

D. Daube, Studies in Biblical Law (1947); ET, 5 (1953), 386–93; S. Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews (19682), 52, 126. ADD. BIBLIOGRAPHY: E. Rubinstein, Sakhar be-Venei Adam la-Asok be-Zenut – Sugiyyot be-Mishpat ha-Ẓibburi be-Yisrael (2003), 360–364; A. Ha-Cohen, "And There Shall You Be Sold to Your Enemies as Bondsman…" in: Parashat ha-Shavu'a, Ki-Tavo, vol. 179 (2004) – Ministry of Justice, Department of Jewish Law, and the Center for the Instruction and Research of Jewish Law, Sha'arei Mishpat College.


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