First, taking;

Second, a person under the age of fifteen;

Third, from a person having legal custody;

Fourth, without consent;

Fifth, for the purpose of marriage/concubinage/(committing a crime involving moral turpitude).

Committee Comments

This statute was amended in 1976 to include abduction of persons of either sex under the age of 15. The purpose of committing a crime of moral turpitude was also added. The statute has not been construed by the Court of Criminal Appeals since its amendment.

The abduction statute protects parental or legal authority over persons under the age of 15 from interference by others who have no legal custody, and is not meant for the protection of the person abducted. Hence, the abduction statute punishes taking a person under 15 from parental or other legal custody without consent of the parent or the person having legal custody, even though the person abducted has consented to being taken. Scott v. State, 85 Okl. Cr. 213, 186 P.2d 336 (1947); Yeats v. State, 30 Okl. Cr. 320, 236 P. 62 (1925). If the person has not consented to the taking, the prosecutor would probably choose to prosecute the accused under one of the kidnapping statutes. If the person has knowingly consented, kidnapping cannot be proven unless the person is under 12, the statutory age of consent under section 741. Thus, the crime of abduction provides criminal sanctions for conduct that does not constitute kidnapping but is considered antisocial because it interferes with parental authority or the rights of one with legal charge.

The taking from parental authority without consent is punishable, however, only if one of three specific intents can be proven, as listed in the fifth element. The gist of the offense of abduction in Oklahoma is the specific mens rea. The accused either must intend to marry the young person or must intend to have the person as a concubine, Scott, supra, or must intend to commit a crime involving moral turpitude.

Crimes involving moral turpitude historically have been defined as those which are mala in se, as opposed to crimes which are mala prohibita. W. LaFave & A. Scott, Criminal Law § 6, at 31 (1972). In other statutory contexts, the Court of Criminal Appeals has classed as crimes involving moral turpitude most offenses constituting a felony, as well as offenses such as petty larceny, Price v. State, 546 P.2d 632 (Okl. Cr. 1976), and illegal possession of stimulants, Ruhm v. State, 496 P.2d 809 (Okl. Cr. 1972).