Kidnapping: Defenses and Penalties

kidnappingKidnapping is a criminal offense which involves taking and conveying away a person against his or her will, either by force, fraud, or intimidation. Kidnapping may be done for ransom or for political or other purposes. Generally, kidnapping occurs when a person, without lawful authority, physically moves another person without that other person’s consent.

Model Penal Code § 212.1 defines kidnapping as an occurrence “when any person is unlawfully and nonconsensually asported (moved) and held for certain purposes. These purposes include gaining a ransom or reward; facilitating the commission of a felony or a flight after the commission of a felony, terrorizing or inflicting bodily injury on the victim or a third person and interfering with a governmental or political function.” A precise definition of kidnapping is difficult to pin down as the definition varies from jurisdiction to jurisdiction. Most state and federal kidnapping statues define the term vaguely and allow courts to fill in the details for their particular jurisdiction.

At the federal level, the Lindbergh Act, passed by Congress in 1932 is the standard set for a federal kidnapping charge and was enacted to prohibit interstate kidnapping (48 Stat. 781 (codified at 18 U.S.C.A. § 1201 et. seq.). The act provides that if a victim of kidnapping is not released within twenty-four hours after abduction, a court may presume that the victim was transported across state lines, thus making the kidnapping a federal offense. The defendant does not necessarily have to know what lines have been crossed; he must simply know that they have, in fact, been crossed.

Other kidnapping situations which fall into federal-crime category include kidnapping by deception as well as by force, receiving, possessing, or disposing of ransom, taking hostages by bank robbers, threats to kidnap and ransom demands sent through interstate communications or the United States mail. In addition, federal kidnapping statutes include confinement for purposes of involuntary servitude and compelled labor against one’s will (paid or unpaid) and even offenses of harboring a runaway and unlawful sale of a public conveyance travel ticket to a minor.

Two key elements common to all charges of kidnapping are asportation (removal of the victim from a place of security to one of greater danger) and detention. However, under most state and federal statutes, not all seizures and asportations constitute kidnapping, allowing police to arrest and jail persons suspected of a crime, or allowing parents to reasonably restrict and control the movement of their children. The asportation element of kidnapping has been dropped as an element of the crime in some state statutes due to the determination of the degree of asportation being a difficult concept to describe.

The states that dropped the asportation element rely on other circumstances of the charge to establish the danger of confinement. In Creek v. State, (Ind. App. 1992), a sleeping child who was not moved or even aware of being confined was still the victim of a kidnapping. And in People v. Taylor, (N.Y. App. Div. 1992), the victim of a robbery restrained in a vacant apartment and tortured after his possessions were taken, was considered a victim of kidnapping, because the restraint was not simply incidental to the robbery but unnecessary and cruel.

The penalty for kidnapping in the United States is severe, with most states making it a crime to attempt or conspire to commit a kidnapping. A conviction of kidnapping usually results in a sentence of imprisonment for a certain number of years and depends in part upon the circumstances of the incident at hand. In some states and on the federal level, the incarceration term for a kidnapping conviction may be for life. In jurisdictions where the death penalty is on the table, a kidnapping conviction of a capital offense (one where the kidnapping results in death), the sentence may be death. Most kidnapping statutes designate different types and levels of kidnapping and assign punishment accordingly, depending on the purpose and length of the abduction. However, all kidnapping convictions result in some jail time with the shortest amount of time being around three years, and in severe cases, a life sentence with or without parole.

Defenses for a charge of kidnapping include a good faith belief in consent and consent. A good faith belief defense means that the defendant is not guilty of kidnapping because he reasonably and actually believed the other person consented to the movement. Consent purports that the other person did indeed consented to go with the defendant. The other person consented if he: (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding to choose to go with the defendant.

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