Kidnapping

KIDNAPPING

The crime of unlawfully seizing and carrying away a person by force or fraud, or seizing and detaining a person against his or her will with an intent to carry that person away at a later time.

The law of kidnapping is difficult to define with precision because it varies from jurisdiction to jurisdiction. Most state and federal kidnapping statutes define the term kidnapping vaguely, and courts fill in the details.

Generally, kidnapping occurs when a person, without lawful authority, physically asports (i.e., moves) another person without that other person's consent, with the intent to use the abduction in connection with some other nefarious objective. Under the model penal code (a set of exemplary criminal rules fashioned by the American Law Institute), kidnapping occurs when any person is unlawfully and non-consensually asported 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 (Model Penal Code § 212.1).

Kidnapping laws in the United States derive from the common law of kidnapping that was developed by courts in England. Originally, the crime of kidnapping was defined as the unlawful and non-consensual transportation of a person from one country to another. In the late nineteenth and early twentieth centuries, states began to redefine kidnapping, most notably eliminating the requirement of interstate transport.

At the federal level, Congress passed the lindbergh act in 1932 to prohibit interstate kidnapping (48 Stat. 781 [codified at 18 U.S.C.A. §§ 1201 et seq.]). The Lindbergh Act was named for Charles A. Lindbergh, a celebrated aviator and Air Force colonel whose baby was kidnapped and killed in 1932. The act provides that if a victim is not released within 24 hours after being abducted, a court may presume that the victim was transported across state lines. This presumption may be rebutted with evidence to the contrary. Other federal kidnapping statutes prohibit kidnapping in U.S. territories, kidnapping on the high seas and in the air, and kidnapping of government officials (18 U.S.C.A. §§ 1201 et seq., 1751 et seq.).

A person who is convicted of kidnapping is usually sentenced to prison for a certain number of years. In some states, and at the federal level, the term of imprisonment may be the remainder of the offender's natural life. In jurisdictions that authorize the death penalty, a kidnapper is charged with a capital offense if the kidnapping results in death. Kidnapping is so severely punished because it is a dreaded offense. It usually occurs in connection with another criminal offense, or underlying crime. It involves violent deprivation of liberty, and it requires a special criminal boldness. Furthermore, the act of moving a crime victim exposes the victim to risks above and beyond those that are inherent in the underlying crime.

Most kidnapping statutes recognize different types and levels of kidnapping and assign punishment accordingly. New York State, for example, bases its definition of first-degree kidnapping on the purpose and length of the abduction. First-degree kidnapping occurs when a person abducts another person to obtain ransom (N.Y. Penal Code § 135.25 [McKinney 1996]). First-degree kidnapping also occurs when the abduction lasts for more than 12 hours and the abductor intends to injure the victim; to accomplish or advance the commission of a felony; to terrorize the victim or a third person; or to interfere with a governmental or political function. An abduction that results in death is also first-degree kidnapping. A first-degree kidnapping in New York State is a class A-1 felony, which carries a sentence of at least 20 years in prison (§ 70.00).

New York State also has a second-degree kidnapping statute. A person is guilty of second-degree kidnapping if he or she abducts another person (§ 135.20). This crime lacks the aggravating circumstances in first-degree kidnapping, and it is ranked as a class B felony. A person who is convicted of a class B felony in New York State can be sentenced to one to eight years in prison (§ 70.00).

Two key elements are common to all charges of kidnapping. First, the asportation ordetention must be unlawful. Under various state and federal statutes, not all seizures and asportations constitute kidnapping: Police officers may arrest and jail a person they suspect of a crime, and parents are allowed to reasonably restrict and control the movement of their children.

Second, some aggravating circumstance must accompany the restraint or asportation. This can be a demand for money; a demand for anything of value; an attempt to affect a function of government; an attempt to inflict injury on the abductee; an attempt to terrorize a third party; or an attempt to commit a felony.

In most states, kidnapping statutes specify that any unlawful detention or physical movement of a child, other than that performed by a parent or guardian, constitutes kidnapping. An abduction of a child thus need not be accompanied by some other circumstance, such as extortion or physical injury, to qualify for the highest level of kidnapping charge. In the absence of an aggravating circumstance, an unlawful, non-consensual restraint or movement is usually charged as something less than the highest degree or level of kidnapping.

Many states have enacted special laws for carjacking, a specialized form of kidnapping. Generally, carjacking occurs when one person forces a driver out of the driver's seat and steals the vehicle. Carjacking is a felony whether the aggressor keeps the victim in the car or forces the victim from the car. In California, a carjacking statute is contained within the penal code's chapter on kidnapping, and it carries a sentence of life imprisonment without the possibility of parole. (Cal. Penal Code § 209.5 [West]).

Kidnapping laws are similar to laws on unlawful or felonious restraint, parental kidnapping, and false imprisonment. These crimes cover the range of unlawful-movement and unlawful-restraint cases. Felonious or unlawful restraint, also known as simple kidnapping, is the unlawful restraint of a person that exposes the victim to physical harm or places the victim in slavery. It is a lesser form of kidnapping because it does not require restraint for a specified period or specific purpose (such as to secure money or commit a felony). False imprisonment is a relatively inoffensive, harmless restraint of another person. It is usually a misdemeanor, punishable by no more than a year in jail. Parental kidnapping is the abduction of a child by a parent. The law on parental kidnapping varies from jurisdiction to jurisdiction: Some jurisdictions define it as a felony, others as a misdemeanor. Many states consider parental kidnapping to be less offensive than classic kidnapping because of the strong bond between parents and children.

The chief judicial concern with the charge of kidnapping is double jeopardy, which is multiple punishment for the same offense. It is prohibited by the fifth amendment to the U.S. Constitution. Kidnapping often is an act that facilitates another offense, such as rape, robbery, or assault. Rape, robbery, and assault often involve the act of moving a person against his or her will, which is the gravamen (i.e., the significant element) of a kidnapping charge. Thus, a persistent problem with kidnapping prosecutions is in determining whether a kidnapping conviction would constitute a second punishment for the same act.

Legislatures have passed statutes, and courts have fashioned rules, to prevent and detect double jeopardy in kidnapping cases. Generally, these laws and rules hold that for kidnapping to be charged as a separate crime, some factor must set the asportation apart from a companion crime. Most courts will sustain multiple convictions if the asportation exposes the victim to increased risk of harm or results in harm to the victim separate from that caused by the companion offense. In other jurisdictions, the test is whether the asportation involves a change of environment or is designed to conceal a companion offense.

In most states, an asportation of a few feet may constitute the separate offense of kidnapping; in other states, distance is not a factor. In New York State, for example, the focus of the kidnapping statute is not distance, but purpose. Thus, an asportation of 27 city blocks might not constitute kidnapping if it is merely incidental to a companion crime (People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 [N.Y. 1965]). Likewise, an asportation from the borough of Manhattan to the borough of Queens might not constitute kidnapping if it plays no significant role in the commission of another crime (People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 [Ct. App. 1967]).

Some states have eliminated the asportation element from their kidnapping statutes. In Ohio, for example, kidnapping is defined in part as restraining the liberty of another person (Ohio Rev. Code Ann. § 2905.01 [Baldwin 1996]). This creates an increased risk of double jeopardy in kidnapping convictions because, by definition, every robbery, rape, or assault would constitute kidnapping. However, the Ohio state legislature has enacted a statute that prohibits multiple convictions for the same conduct unless the defendant exhibits a separate animus (i.e., a separate intent) to commit a separate crime (§ 2941.25). Whether the prosecution proves a separate animus to kidnap is a question of fact based on the circumstances surrounding the crime.

In State v. Logan, 60 Ohio St. 2d 126, 397 N.E.2d 1345, 14 Ohio Op. 3d 373 (1979), the Supreme Court of Ohio held that the defendant could not be convicted of both rape and kidnapping when he had moved the victim a mere few feet and had released the victim immediately after the rape. Under the facts of the case, the asportation had no significance apart from the rape offense. According to the court, the defendant had displayed no animus beyond that necessary to commit rape, so punishment for both rape and kidnapping was not warranted.

In contrast, in State v. Wagner, 191 Wis. 2d 322, 528 N.W.2d 85 (Ct. App. 1995), the appeals court upheld a separate conviction for kidnapping. In Wagner, the defendant approached two women on two separate occasions in a laundromat. Both times, the defendant tried to force the women into a bathroom to rape them. He was convicted of two counts of attempted first-degree sexual assault, one count of kidnapping while armed, and one count of attempted kidnapping while armed. On appeal, he argued that he should not have been convicted of kidnapping because, under section 940.31(1)(a) of the Wisconsin Statutes, kidnapping is defined in part as the carrying of a person "from one place to another," and he had not taken his victims to another place. The court disagreed, holding that forced movement from one room to another falls within the meaning of the kidnapping statute. Ultimately, the appeals court affirmed the defendant's sentence of 72 years in prison.

The kidnapping of children has presented a particularly emotional issue for lawmakers. In 1984, in response to the kidnapping and murder of his child Adam, John Walsh founded the National Center for Missing and Exploited Children (NCMEC). NCMEC serves as a resource in providing assistance to parents, children, law enforcement, schools, and the community in recovering missing children and raising public awareness about ways to help prevent child abduction.

In 1996, the kidnapping and murder of Amber Hagerman in Texas inspired the Dallas/Fort Worth Association of Radio Managers and local law enforcement agencies in north Texas to create the nation's first "AMBER Alert" plan. AMBER, in addition to being Amber Hagerman's first name, also serves as an acronym for America's Missing: Broadcast Emergency Response. "Amber Alert" plans allow the development of an early warning system to help find abducted children by broadcasting information over radio and television to the public as quickly as possible. This information includes descriptions and pictures of the missing child, the suspected abductor, a suspected vehicle, and any other information available and valuable to identifying the child and suspect.

From its beginnings in Texas, the AMBER Alert system spread until, by 2002, 55 versions had been adopted at local, regional, and statewide levels. Eighteen states had adopted the plan by 2002, urged on by the NCMEC, which adopted the AMBER Alert as one of its top priorities. As a result, many people were convinced that the late 1990s and new millennium saw a sharp decline in child kidnappings, which were well publicized, thanks to AMBER Alerts. In fact, the FBI reported that child abductions had actually declined from the 1980s, from an average between 200 and 300 per year to only 93 in 2000.

The AMBER Alerts were considered so successful—credited with recovering 30 children—that 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, Pub. L. No. 108-21, 117 Stat. 650. 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. Grants were provided to help set up effective AMBER Alert programs at the state and local levels.

further readings

Blinka, Daniel D., and Thomas J. Hammer. 1995. "Court of Appeals Digest." Wisconsin Lawyer 68 (April).

Diamond, John L. 1985. "Kidnapping: A Modern Definition." American Journal of Criminal Law 13.

Hillebrand, Joseph R. 1991. "Parental Kidnapping and the Tort of Custodial Interference: Not in a Child's Best Interests." Indiana Law Review 25.

Kaplan, John, and Robert Weisberg. 1991. Criminal Law: Cases and Materials. 2d ed. Boston: Little, Brown.

Leahy, Patrick. 2002. Statement Regarding an AMBER Alert National System. Washington D.C.: Federal Document Clearing House (September 4).

National Center for Missing and Exploited Children. "National AMBER Alert Network Will Now Become Law." Available online at <www.ncmec.org>.

Onion, John F. 1995. "Mass Media's Impact on Litigation: A Judge's Perspective." Review of Litigation 14.

cross-references

Hearst, Patty; Lindbergh Kidnapping.