(c) makes repeated telephone calls, whether or not a conversation ensues, with no purpose of legitimate communication. (2) Jurisdiction. There is federal jurisdiction over an offense defined in this section under paragraphs (a) or (e) of section 201. Comment

This provision substantially re-enacts present 47 U.S.C. § 223, concerning harassing telephone calls, and 18 U.S.C. §§ 876-77, concerning the mailing of threats, to the extent that the threats are designed to harass or frighten but do not amount to more serious acts of terrorizing or coercion, covered by proposed §§ 1614 and 1617, respectively. With more serious situations covered elsewhere, the present offense may be classified as a Class B misdemeanor.

§ 1619. Consent as a Defense.

(1) When a Defense. When conduct is an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury by all persons injured or threatened by the conduct is a defense if:

(a) neither the injury inflicted nor the injury threatened is such as to jeopardize life or seriously impair health;

(b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport; or

(c) the conduct and the injury are reasonably foreseeable hazards of an occupation or profession or of medical or scientific experimentation conducted by recognized methods, and the persons subjected to such conduct or injury, having been made aware of the risks involved, consent to the performance of the conduct or the infliction of the injury.

(2) Ineffective Consent. Assent does not constitute consent, within the meaning of this section, if:

(a) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense and such incompetence is manifest or known to the actor;

(b) it is given by a person who by reason of youth, mental disease or defect, or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or

(c) it is induced by force, duress or deception.

Comment

Often the effect of consent is specified in the definition of an offense, e.g., rape, theft. But an explicit consent provision for crimes of

assault and endangerment is necessary because they are crimes of infliction of bodily injury upon others, and even intentional infliction of injury may be consented to, as in surgery. The defense provided here serves to explicate matters which would, absent the statute, probably be resolved by prosecutorial discretion.

KIDNAPPING AND RELATED OFFENSES

§ 1631. Kidnapping.

(1) Offense. A person is guilty of kidnapping if he abducts another or, having abducted another, continues to restrain him, with intent to do the following:

(a) hold him for ransom or reward;

(b) use him as a shield or hostage;

(c) hold him in a condition of involuntary servitude;

(d) terrorize him or a third person;

(e) engage in conduct which, in fact, constitutes a felony or an attempt to commit a felony; or

(f) interfere with the performance of any government or political function.

(2) Grading. Kidnapping is a Class A felony unless the actor voluntarily releases the victim alive and in a safe place prior to trial, in which case it is a Class B felony.

Comment

The existing federal kidnapping statute (18 U.S.C. § 1201) prohibits the taking of another person across state lines not only for the purpose of holding him for ransom and reward, the kind of conduct to which it originally was addressed, but for any purpose. It is generally recognized as having too broad a reach, particularly in light of the fact that the maximum penalty is life imprisonment. The proposed kidnapping provision, which requires both abduction (defined in § 1639) and a specified criminal purpose, embraces only the most serious cases of unlawful restraint.

The policy of existing federal law has been to make the highest penalty for kidnapping available when the victim has not been returned unharmed. This could encourage the kidnapper to kill the victim who has suffered a minor injury, or to hold him until he has recovered. Accordingly, the distinction between Class A and Class B felony grading adopted here is whether or not the victim was released alive in a safe place. However, if the death penalty is abolished for kidnapping, and the death penalty, as a result of the decision in Jackson v. United States, 390 U.S. 570 (1968), no longer does exist for federal kindapping cases, the distinction may lose some of its significance for the kidnapper. In that event, a preferable grading

distinction might be whether or not the kidnapping victim was returned without having suffered serious bodily injury.

See § 1634 for federal jurisdiction.

§ 1632. Felonious Restraint.

A person is guilty of a Class C felony, if he: (a) knowingly abducts another;

(b) knowingly restrains another under terrorizing circumstances or under circumstances exposing him to risk of serious bodily injury; or

(c) restrains another with intent to hold him in a condition of involuntary servitude.

Comment

Under this section and the definitions in § 1639 a middle range of conduct between kidnapping and unlawful imprisonment is covered and an appropriate penalty is provided. Paragraph (a) proscribes abduction absent the special culpability listed in § 1631; paragraph (b) serves to upgrade the offense of simple unlawful imprisonment when committed under terrorizing or endangering circumstances. Paragraph (c) proscribes conduct presently covered by federal peonage and slavery enactments (18 U.S.C. §§ 1581-88).

See § 1634 for federal jurisdiction.

§ 1633. Unlawful Imprisonment.

(1) Offense. A person is guilty of a Class A misdemeanor if he knowingly subjects another to unlawful restraint.

(2) Defense. It is a defense to a prosecution under this section that the actor is a parent or person in equivalent relation to the person restrained and that the person restrained is a child less than eighteen years old.

Comment

The unlawful imprisonment provision concerns restraints upon persons where no further harm is imposed or threatened. It would apply to moving persons across state lines against their will, to restraints occurring on federal enclaves and to restraints on federal officials. See § 1634. To the extent such conduct involves interstate movement, it is presently covered by 18 U.S.C. § 1201.

The defense provided is essentially a jurisdictional limitation, intended to avoid federal intervention in child custody disputes. As such, it may, in the final draft, be explicitly treated as a jurisdictional provision, rather than a substantive defense. In any event, it should be

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clear that this is by no means the sole defense to a charge of unlawful imprisonment. "Unlawful", contained in the definition of "restrain" in § 1639 and repeated here for clarity, invokes the civil law of legality of restraint, e.g., regarding parental privileges, citizen-arrests. Further, general defenses provided in the Code, e.g., § 605 (Use of Force by Persons with Parental, Custodial or Similar Responsibilities), § 608 (Conduct Which Avoids Greater Harm), would be available. See Working Papers, pp.

§ 1634. Federal Jurisdiction Over Kidnapping and Related Offenses.

(1) Generally. There is federal jurisdiction over an offense defined in sections 1631 to 1633 under paragraphs (a), (b), (c), (h) or (1) of section 201, or when the victim is a member of the immediate family of the President of the United States, the Presidentelect, the Vice President, or, if there is no Vice President, the officer next in the order of succession to the office of President of the United States, the Vice President-elect, or any person who is acting as President under the Constitution and laws of the United States.

(2) Involuntary Servitude. Federal jurisdiction over an offense defined in sections 1631 (c) or 1632 (c) extends to any such offense committed anywhere within the United States or within the special maritime or territorial jurisdiction of the United States, as defined in section 213.

(3) Investigative Authority. Upon request of state or local law enforcement authorities, the Federal Bureau of Investigation is authorized to investigate any case of abduction occurring within the United States regardless of whether federal jurisdiction exists or appears to exist.

Comment

The present federal jurisdiction over kidnapping and other crimes involving restraint upon persons taken across state lines (18 U.S.C. § 1201) would be continued. In addition, there would be jurisdiction where the offense involves a person on a federal enclave or a federal official engaged in his official duties. There would also be coverage when the kidnapping occurs in the course of committing another federal offense, e.g., impersonating a federal official, or where it comes within piracy jurisdiction. The protection of the federal laws would be explicitly extended to members of the immediate family of the President and his successors. Under the Thirteenth Amendment there is plenary federal protection over any acts in the United States amounting to slaveholding; and subsection (2) makes this jurisdiction explicit.

At present, involvement of federal investigatory resources in kidnapping cases is triggered by a presumption that if a victim is not released in 24 hours, state lines have been crossed in the course of his abduction. Subsection (3) would obviate the need for such an arbitrary device by explicitly providing that federal investigative resources may be called upon at any time upon request of local authorities. In cases where federal jurisdiction appears to exist as when a federal official is kidnapped or state lines have been crossed or the kidnapping is part of another federal crime-federal investigative authorities may intervene without the request of local authorities. Subsection (3) may be transferred from this substantive chapter of the Code. It is included in the Study Draft so that proper disposition of the present Lindbergh Law provisions may be considered.

§ 1635. Usurping Control of Aircraft.

(1) Offense. A person is guilty of a Class A felony if, by force of threat of force, he usurps control of an aircraft in flight.

(2) Jurisdiction. There is federal jurisdiction over an offense defined in this section under paragraphs (a), (b) or (l) of section 201.

Comment

This section carries forward the existing air piracy offense (49 U.S.C. § 1472(i)). The formulation in the existing statute "seizure or exercise" of control "with wrongful intent"-has been encompassed in the draft by the term "usurps", which has a legislative and judicial history with respect to mutiny aboard a vessel (18 U.S.C. § 2193). Of. § 1805 in the proposed Code. Jurisdiction provided for the offense in existing law-when the aircraft is in flight "in air commerce" as defined in 49 U.S.C. § 1301 (4)-has been expressly carried forward as part of the definition of "special maritime and territorial jurisdiction of the United States" (§ 213 (a) (vi)). Note that, by virtue of such general incorporation of the Title 49 jurisdictional provisions, all offenses defined in the proposed Code will be subject to federal prosecution when committed aboard such aircraft. This obviates the need for most of the special criminal provisions in Title 49 other than as provided in this section.

§ 1639. Definitions for Sections 1631 to 1639.

In sections 1631 to 1639:

(a) "restrain" means to restrict the movements of a person unlawfully and without consent, so as to interfere substantially with his liberty by removing him from his place of residence or business, by moving him a substantial distance from one place to another, or by confining him for a substantial