Kidnapping for ransom is the first thought that comes to mind when one considers abduction and kidnapping but in reality many charges of kidnapping relate to child custody disputes in which a parent removes a child from the custody of the other parent and/or the jurisdiction of the court. Also, at times kidnapping may be performed without true conscious criminal intent, with the accused claiming that at all times perceived consent was involved and that the charges of abduction were only fabricated long after the event. Thus the crime of kidnapping and related civil suit for remedies occurs in far more circumstances than that common demand for ransom.
Kidnapping and Abduction laws vary from state to state, but normally apply to anyone who, without lawful authority, forcibly seizes and confines another, with intent to cause such other person to be secretly confined or imprisoned against his or her will. Kidnapping is also a federal crime and several federal statutes have been enacted to address this issue including the Federal Parental Kidnapping Prevention Act and Congress passed a national AMBER Alert bill as part of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003. Under this bill, the attorney general, in cooperation with the secretary of transportation and the chairman of the Federal Communications Commission (FCC), appoints a National AMBER Alert Coordinator to oversee the communication network. The AMBER Alert Coordinator at the Justice Department works with states, broadcasters, and law enforcement agencies to set up AMBER plans, to serve as a point of contact to supplement existing AMBER plans, and to facilitate appropriate regional coordination of AMBER Alerts.
This article shall deal with both California and Federal law in this area of the law.
United States kidnapping laws have been derived from common law principles of kidnapping developed originally by common law in England. The early common law defined the offense of kidnapping as the forcible abduction or stealing of a man, woman, or child from his or her own country and sending him or her into another country. In the late nineteenth and early twentieth centuries, states began to redefine kidnapping, most notably eliminating the requirement of interstate transport. Gradually, the involuntary detention of the victim became the key element of kidnapping.
The various state kidnapping statutes seek to secure the personal liberty of citizens and imposes the assistance of law necessary to release them from unlawful restraint. The federal kidnapping statute, also known as the Lindbergh Act, prohibits interstate kidnapping. There are federal kidnapping statutes which prohibit kidnapping in United States territories, kidnapping on the high seas and in the air, and kidnapping of government officials.
When a person, without lawful authority, physically transports or moves another person without that other person’s consent, with the intent to use the abduction in connection with some other nefarious objective, then the crime of kidnapping has occurred. Under the Model Penal Code, which is a set of standard criminal rules shaped by the American Law Institute, kidnapping occurs when any person is unlawfully and non-consensually asported and held for following purposes: (a) to hold for ransom or reward, or as a shield or hostage; (b) to facilitate the commission of any flight or felony thereafter; (c) to inflict bodily injury on or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function.
There are different degrees of kidnapping. The most common are first-degree kidnapping and second degree kidnapping. These degrees are classified differently from state to state but are generally based on severity or harm to the victim. In some jurisdictions, if the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree. However, if the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree.
While the federal kidnapping law, commonly known as the Lindbergh Law, does not separate kidnapping into degrees of severity, Federal Sentencing Guidelines instruct a greater sentence based on the harm to the victim, or where a gun was used in the kidnapping.
Elements of Crime
Kidnapping means taking and conveying away a person against his or her will or confining a person to a controlled space for an illegal purpose. The purpose or motive behind kidnapping includes gaining a ransom or reward; facilitating the commission of a felony or terrorizing the victim or a third person and, under special statutes, can include removing a child from the custody of an ex spouse, etc. Even unlawful restraint of a person amounts to kidnapping if such restraint is substantial enough to interfere with the victim’s liberty. Essential elements of kidnapping invoking Federal jurisdiction include “transportation in interstate commerce of an unconsenting person who is held for ransom, reward, or otherwise, with such acts being done knowingly and willfully.” United States v. Hood, 143 Fed. Appx. 94, 97 (10th Cir. Okla. 2005). The two key elements of kidnapping are unlawful taking of the victim and a nefarious motive like obtaining a ransom. The intent of the kidnapper is a decisive element in the crime of kidnapping. The physical taking or removal of a person from his/her home by the use of force, fraud, or coercion amounts to kidnapping. Kidnapping generally includes the seizing, confining, or detention of another person against his/her will.
For state law, generally, the elements of the crime of kidnapping depend on the wording of the applicable state statute. However, generally the offense of kidnapping consists of the taking and intent to kidnap. The elements of coercion or deception are also generally essential to the crime of kidnapping. Furthermore, kidnapping generally includes the seizing, confining, or detention of another, and such conduct is, essential to a criminal abduction or kidnapping.
According to some authorities, confinement alone is sufficient to constitute kidnapping. The essence of confinement is not its location but whether the victim, by his or her confinement, is effectively isolated from the usual protections of society. The element of restraint is present, when there is substantial interference with the person’s liberty.
In some states, in order to convict defendant of kidnapping, it is required that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her or his will and without lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person.
Some state kidnapping statutes do not require use of force for the commission of the crime of abduction. In some jurisdictions, in order to establish the offense of kidnapping, the prosecution must prove beyond a reasonable doubt that the defendant confined the victim by force. Furthermore, in some states, in order to convict a defendant of kidnapping the prosecution must prove that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her or his will and without lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person. However, in some other jurisdictions, the focus in determining whether kidnapping has occurred is on the act of restraint “without consent.”
One of the essential elements of kidnapping is lack of consent of victim. Both common law and modern statutes state that the taking or carrying away must be against the will of the victim. The involuntariness of the seizure and detention is the very essence of the crime of kidnapping. The fact that the victim may have initially consented to some conduct does not necessarily prevent the establishment of the lack of consent element if his or her mind changes. That is essential to note: if the victim initially consented but now wants to leave and is prohibited, that can be considered kidnapping in many jurisdictions.
Kidnapping v. False Imprisonment
Kidnapping occurs when a person, without lawful authority, physically moves another person without that other person’s consent, with the intent to use the abduction in connection with some other nefarious objective. It is a crime. See our article on Criminal Law.
False imprisonment, on the other hand, is not only a crime but gives rise to a civil claim for damages. See our article on Torts. False imprisonment means the illegal confinement of one individual without his or her consent by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement.
False imprisonment can be a relatively inoffensive, harmless restraint of another person. It can also be a criminal. In many jurisdictions, it is usually a misdemeanor, punishable by no more than a year in jail unless bodily force is used. An individual whose conduct constitutes the tort of false imprisonment might also be charged with committing the crime of kidnapping, since the same pattern of conduct may provide grounds for both. However, kidnapping may require that other facts be shown, such as the removal of the victim from one place to another.
An individual alleging false imprisonment may sue for damages for the interference with her or his right to move freely.
In kidnapping, the seizure and detention must be involuntary and consent by the victim establishes a defense to kidnapping. United States v. Sellers, 62 Fed. Appx. 499, 502 (4th Cir. S.C. 2003). In addition, if the defendant was a relative of the victim and his sole purpose was to assume custody of the victim, then that itself constitutes a valid defense to the kidnapping charge. United States v. Landham, 251 F.3d 1072, 1081 (6th Cir. Ky. 2001).
Under the federal kidnapping statute, consent of the victim is a valid defense to kidnapping. However, to successfully prove a kidnapping offense, the mere fact that the victim initially consented to some act does not necessarily prevent the establishment of the element of “lack of consent” to other acts constituting the crime of kidnapping.
Mistake of Fact:
Generally, where a particular fact is an element of the crime, it is no defense that the perpetrator is unaware of the existence of that fact, or had a mistaken belief about that fact. However, there are cases in which the courts have taken a different approach, either leaving the question of the effect of mistake open or recognizing mistake as justification or defense.
A person charged with kidnapping is entitled to introduce evidence to show that s/he believed s/he was acting under the authority of law, in a jurisdiction which allows the defense of mistake.
The defenses of coercion, duress, or compulsion are available in kidnapping prosecutions. These generally refer to situations in which a defendant charged with a crime asserts that s/he committed the offense under a threat from another person to do harm to the defendant if the defendant did not commit the crime. The defense of duress is available when the defendant is coerced to engage in unlawful conduct by the threat or use of unlawful physical force of such degree that a person of reasonable firmness could not resist. To establish a defense of duress or coercion, a defendant must show s/he was under an unlawful threat of such nature as to induce an apprehension of death or serious bodily injury.
California Law on Child Kidnapping
According to Cal Pen Code § 207, a person is guilty of kidnapping when s/he
- forcibly, or by any other means of instilling fear, holds or carries another into another place;
- for the purpose of committing any offense hires, persuades, entices, decoys, or seduces by false promises or misrepresentations, any child under the age of 14 years to go out of the country, state, or county, or into another part of the same county;
- forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of California, with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person.
A person who, being out of California, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings that person within the limits of California, is guilty of kidnapping under California law…though Federal law would also apply since the crime would have taken place over state lines.
Asportation is an element of kidnapping and requires that the forcible movement of a victim be “substantial in character,” that is, “more than slight” or “trivial.” People v Stevens, 2003 Cal. App. Unpub. LEXIS 9683 (Cal. App. 6th Dist. Oct. 10, 2003). Forcible detention of a victim is an element of kidnapping. People v. Thomas, 26 Cal. App. 4th 1328, 1334 (Cal. App. 2d Dist. 1994)
Kidnapping is punishable by imprisonment for three, five, or eight years. If the person kidnapped is under 14 years of age, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. If a person kidnaps or carries away another person with intent to hold or detain, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole. If a person kidnaps another to commit robbery, rape, spousal rape, oral copulation or sodomy, shall be punished by imprisonment in the state prison for life with the possibility of parole.
Federal Law on Child Kidnapping:
Congress has enacted numerous civil and criminal statutes to address Abduction and kidnapping and interstate and international child custody and visitation disputes. The United States is also party to a treaty aimed at resolving international child abduction case.
The following are some of the Federal Statutes on Kidnapping:
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT ACT): The Act authorizes law-enforcement authorities to utilize tools to detect, investigate, and punish crimes committed against children. America’s Missing: Broadcast Emergency Response (AMBER) Alert provisions calling for the national coordination of state and local AMBER Alert programs is an example of such powerful tools.
Hague Convention on the Civil Aspects of International Child Abduction: The Hague Convention on the Civil Aspects of International Child Abduction (1980) establishes procedures to ensure the prompt return of children wrongfully removed to or retained in a country other than that of their habitual residence.
International Child Abduction Remedies Act, 42 USC 11601: The Act implements the Hague Convention on the Civil Aspects of International Child Abduction and authorizes state and federal courts to hear cases under the Convention.
Parental Kidnapping Prevention Act (PKPA), 28 USC 1738 A: The Act assures that full faith and credit is given to child-custody determinations. States may honor and enforce custody determinations made in other states as long as certain requirements listed by the Act are satisfied.
Missing Children Act, 28 USC 534: The Act authorizes the attorney general to collect and exchange information that would assist in the identification of unidentified deceased individuals and the location of missing persons, including missing children.
Missing Children’s Assistance Act, 42 USC 577: The Act directs the Administrator of the Office of Juvenile Justice and Delinquency Prevention to establish and operate a national toll-free telephone line for missing children and a national resource center and clearinghouse.
National Child Search Assistance Act, 42 USC 5779-80: The National Child Search Assistance Act of 1990 requires each federal, state, and local law-enforcement agency to enter information about missing children younger than the age of 18 into the Federal Bureau of Investigation’s (FBI) National Crime Information Center (NCIC) database. The Act also establishes state reporting requirements.
Adam Walsh Child Protection and Safety Act: The Act amended a portion of the National Child Search Assistance Act to mandate law enforcement entry of information about missing and abducted children into the National Crime Information Center (NCIC) database within two hours of receipt of the report.
International Parental Kidnapping Crime Act (IPKCA), 18 USC 1204: The International Parental Kidnapping Crime Act of 1993 makes it a federal crime to remove a child from the United States or retain a child, who has been in the United States, outside the United States with the intent to obstruct the lawful exercise of parental rights.
The Uniform Child Custody Jurisdiction and Enforcement Act: Apart from jurisdiction in interstate custody and visitation cases, the Act authorizes public officials to play a role in civil child custody enforcement and cases involving the Hague Convention on the Civil Aspects of International Child Abduction.
Federal Kidnapping Act: Federal Kidnapping Act (18 U.S.C. § 1201) is also known as the Lindbergh Law, or Little Lindbergh Law. Since state and local law enforcement officers could not effectively pursue kidnappers across state lines, the Federal Kidnapping Act was enacted to let federal authorities step in and pursue kidnappers once they had crossed state lines with their victim. The act was enacted following the historic Lindbergh kidnapping, the abduction and murder of Charles Lindbergh’s toddler son.
The Act provides that if the victim is not released within twenty-four hours after being kidnapped, there is a rebuttable presumption that he or she has been transported in interstate or foreign commerce. Federal Kidnapping Act authorizes the jury to recommend death penalty. “Provided that the kidnapped person has been liberated unharmed”. Federal Kidnapping Act was the first statute to include “liberated unharmed”. The statute does not define the word unharmed. Generally the courts concedes some injuries as trifle in nature to preclude death penalty. A provision of the law provides exception for parents who abduct their own minor children.
Federal Parental Kidnapping Prevention Act Discussion
Kidnapping by parents encompasses the taking, retention or concealment of a child by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights, of another parent or family member. Because of the harmful effects on children, parental kidnapping has been characterized as a form of child abuse.
Congress has enacted civil and criminal laws to address parental kidnapping and interstate and international child custody and visitation disputes. In 1980, Congress enacted the Federal Parental Kidnapping Prevention Act (PKPA) to resolve persistent problems in interstate child custody practice, and to address the growing problem of parental kidnapping. The PKPA governs the interstate effect that must be given to child custody determinations made by state courts that exercise jurisdiction consistently with its terms. Specifically, such custody determinations are entitled to full faith and credit in all states. Under the PKPA, once a ‘home state’ court enters a custody order, that state retains exclusive continuing jurisdiction to modify its order even if the custodial parent and child no longer live in the state, provided there is a basis under state law for custody jurisdiction. The PKPA does not apply in international cases.
Kidnapping by Parents
Kidnapping by parents encompasses the taking, retention or concealment of a child by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights, of another parent or family member. Abducted children suffer emotionally and sometimes physically at the hands of their abductors. Many children are told that the other parent is dead or no longer loves them. Because of the harmful effects on children, parental kidnapping has been characterized as a form of child abuse.
Obtaining a custody determination that is entitled to enforcement nationwide and getting it enforced may be critical to recovering an abducted child in the United States. The laws governing custody jurisdiction and enforcement are the following:
- Uniform Child Custody Jurisdiction Act (UCCJA): The UCCJA governs jurisdiction to make and modify child custody determinations and requires interstate recognition and enforcement of custody orders.
- Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): The UCCJEA replaced a previous Uniform Act, the “Uniform Child Custody Jurisdiction Act”, primarily because the old act was inconsistent with the federal Parental Kidnapping Prevention Act. Especially, when determining proper jurisdiction for initial custody determinations. The UCCJEA corrects these problems. The UCCJEA also added uniform procedures to register and enforce child-custody orders across state lines.
- Parental Kidnapping Prevention Act of 1980 (PKPA): In 1980, Congress enacted the PKPA to resolve persistent problems in interstate child custody practice, and to address the growing problem of parental kidnapping. The PKPA governs the interstate effect that must be given to child custody determinations made by state courts that exercise jurisdiction consistently with its terms. Specifically, such custody determinations are entitled to full faith and credit in all states.
Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA governs state courts’ jurisdiction to make and modify “child-custody determinations,” a term that expressly includes custody and visitation orders. The Act requires state courts to enforce valid child-custody and visitation determinations made by sister state courts. It also establishes innovative interstate enforcement procedures. However, UCCJEA is not a substantive custody statute.
The UCCJEA applies to the following among other things:
- Applies to a range of proceedings in which custody or visitation is at issue;
- Authorizes temporary enforcement of visitation determinations;
- Authorizes courts to exercise emergency jurisdiction in cases involving family abuse and limits the relief available in emergency cases to temporary custody orders;
- Creates a registration process for out of State custody determinations.
- Establishes a procedure for speedy interstate enforcement of custody and visitation determinations.
The UCCJEA requires State courts to recognize and enforce custody determinations made by foreign courts under factual circumstances that substantially conform to the UCCJEA’s jurisdictional standards. However, state courts need not enforce a foreign court order if the child-custody law of the foreign country violates fundamental principles of human rights.
With the overlapping Federal and State statutes imposing significant criminal penalties and the civil remedies of False Imprisonment available, actions constituting kidnapping create both civil and criminal liability and that includes kidnapping that relates to custody disputes. The laws are likely to become even more strictly enforced since the issues of child slavery and labor are of import to the population today.
Aside from true criminals, most alleged acts occur in moments of rage or involve child custody…but the ramifications regardless of such motivations can be catastrophic and must be taken extremely seriously. One client who did not return his child to the mother when due and, instead, decided on a last minute trip out of State to show the child Disneyworld suddenly found himself facing Federal charges that astonished him and it was months before we could convince the various prosecutors that no serious charges should be filed. This is real and must be taken seriously.