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The crime of kidnapping occurs when a person is taken from one place to another against their will or a person is confined to a controlled space without legal authority to do so.
Elements of Kidnapping
The crime of kidnapping is charged when the transportation or confinement of the person is done for an unlawful purpose, such as for ransom, or for the purpose of committing another crime, for example kidnapping a bank officer's family in order the gain assistance in robbing a bank.
In some states, as in Pennsylvania, the crime of kidnapping occurs when the victim is held for ransom or reward, or as a shield or hostage, or in order to facilitate commission of any felony or flight thereafter; or to inflict bodily injury on or to terrorize the victim or another, or to interfere with the performance by public officials of any governmental or political function.
Elements of kidnapping include:
- Unlawful abduction, confinement, and restraint
- Unlawful intent
In most states, there are different charges for kidnapping depending on the severity of the crime. Determining the motive behind the kidnapping often determines the charge.
According to "Criminal Law, Second Edition" by Charles P. Nemeth, the motive for kidnapping generally falls under these categories:
- Money: Holding a person for ransom
- Sexual: Transporting the victim without their consent for the purpose of sex
- Political: To force political change
- Thrill Seeking: The thrill of controlling others
If the motive is rape the kidnapper would likely be charged with first-degree kidnapping, regardless of if the rape actually occurred or not. The same would hold true if the kidnapper physically harmed the victim or put them into a situation where the threat of being physically harm existed.
Some states require that to prove a kidnapping, the victim must be moved involuntarily from one place to another. Depending on the state law determines how far the distance is to constitute kidnapping. Some states such as New Mexico, include verbiage that helps to better define movement as "taking, retraining, transporting, or confining,"
Generally, kidnapping is considered a violent offense and many states require that some level of force is used to restrain the victim. The force does not necessarily have to be physical. Intimidation and deception are viewed as an element of force in some states.
If for example, as in the kidnapping of Elizabeth Smart in 2002, the kidnapper threatened to kill the victim's family in order to get her to comply with his demands.
Under certain circumstances, kidnapping can be charged when noncustodial parents take their children to keep them permanently. If the child is taken against their will, kidnapping can be charged. In many instances, when the kidnapper is a parent, the charge of child abduction is filed.
In some states, if the child is of age to make a competent decision (the age varies from state to state) and chooses to go with the parent, kidnapping cannot be charged against the parent. Likewise, if a nonparent takes a child away with the child's permission, that person cannot be charged with kidnapping.
Degrees of Kidnapping
Kidnapping is a felony in all states, however, most states have different degrees, classes or levels with different sentencing guidelines. Kidnapping is also a federal crime and a kidnapper can face both state and federal charges.
- First-degree kidnapping almost always involves physical harm to the victim, the threat of physical harm, or when the victim is a child.
- Second-degree kidnapping is often charged when the victim is unharmed and left in a safe place.
- Parental kidnapping is usually dealt with under different sentencing guidelines and usually results in a lesser sentence than most kidnapping convictions. Sentencing for parental kidnapping is much less severe and generally averages around three years in prison, depending on the circumstances.
Federal Kidnapping Charges
The federal kidnapping law, also known as the Lindbergh Law, uses the Federal Sentencing Guidelines to determine the sentencing in kidnapping cases. It is a point system based on the specifics of the crime. If a gun is used or the victim suffers physical harm it will result in greater points and a more severe punishment.
For parents who are guilty of abducting their own minor children, different provisions exist for determining the sentence under federal law.
Kidnapping Statute of Limitations
Kidnapping is considered one of the most serious crimes and there is no statute of limitations. Arrests can be made any time after the crime has occurred.