Under federal and state law, kidnapping is commonly defined as the taking of a person from one place to another against his or her will, or the confining of a person to a controlled space. Some kidnapping laws require that the taking or confining be for an unlawful purpose, such as extortion or the facilitation of a crime. A parent without legal custody rights may be charged with kidnapping for taking his or her own child, in certain circumstances.
kidnapping n. the taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation. Although it is not necessary that the purpose be criminal (since all kidnapping is a criminal felony) the capture usually involves some related criminal act such as holding the person for ransom, sexual and/or sadistic abuse, or rape. It includes taking due to irresistible impulse and a parent taking and hiding a child in violation of court order. An included crime is false imprisonment. Any harm to the victim coupled with kidnapping can raise the degree of felony for the injury and can result in a capital (death penalty) offense in some states, even though the victim survives. Originally it meant the stealing of children, since "kid" is child in Scandinavian languages, but now applies to adults as well.
Kidnapping The crime of unlawfully seizing and carrying away a person by force orFraud, 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.
Carjacking The criminal taking of a motor vehicle from its driver by force, violence, or intimidation.
The u.s. justice department categorizes the crime of carjacking as a "completed or attempted Robbery of a motor vehicle by a stranger to a victim." Carjacking incidents emerged in increasing numbers in the 1980s and 1990s, after their initial appearances in Detroit. According to a report filed with the Bureau of Justice Statistics in 1999, an average of 49,000 carjackings occurred in the United States each year between 1992 and 1996. During this time, about half of all attempted carjackings were successful, though the most carjackings (84 percent) did not result in injuries to the victims.
Carjackers are often thought by the public to target older persons, women, and tourists—groups of conspicuous vulnerability. However, statistics from 1992 to 1996 show that individuals between the ages of 25 and 49 were more likely to be the victims of such a crime (3.6 out of every 10,000 persons) than individuals ages 50 or older (0.9 out of every 10,000 persons). Moreover, males during this time span were more likely to be victims (3.1 out of every 10,000 persons) than females (1.9 out of every 10,000 persons).
The makes and models of the cars targeted for carjacking vary from city to city, and it is not only the expensive, top-of-the-line cars that are taken but also older and less pricey automobiles. This may be because carjackings are more crimes of opportunity than of premeditation. Carjackers simply wait for an unaware driver, an open window, or an unlocked door. According to the Bureau of Justice Statistics report in 1999, persons with an average annual income of between $35,000 and $49,999 were more likely to be victims (3.2 out of every 10,000) than those who made $50,000 or more per year (2.4 out of every 10,000).
Carjacking was formally introduced to Congress during its spring 1992 session by Representative Charles E. Schumer (D-NY). Over the next several months, a new law involving the crime was discussed and developed into the Anti-Car Theft Act of 1992 (18 U.S.C.A. § 2119). The focus was not entirely on carjacking, but rather on car theft, which had become the number one property crime in the United States, with automobiles constituting more than 50 percent of the property U.S. citizens lost to theft.In the fall of 1992, Pamela Basu and her 22-month-old daughter were carjacked in Maryland. Basu was forced from her car by two men and, in a struggle to keep her daughter from being hurt, became caught in the seat belt outside the car. She was dragged almost two miles before she was freed from the seat belt; her daughter, still in her car seat, was thrown from the vehicle a short time later. Basu died of massive internal injuries; her daughter was physically unharmed. The publicity surrounding this crime helped fuel the movement that led to the passage of a provision in the Anti-Car Theft Act of 1992 that made carjacking a federal offense.
President George Herbert Walker Bush signed the act into law on October 25, 1992. The statute's provision regarding carjacking was as follows:Whoever, possessing a firearm, as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—1) be fined under this title or imprisoned not more than 15 years, or both. 2) If serious bodily injury … results, be fined under this title or be imprisoned not more than 25 years, or both, and 3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.
Within a few months of its passage, the federal carjacking statute was challenged under the Double Jeopardy Clause of the U.S. Constitution. According to the Fifth Amendment, no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," meaning that no one can be tried twice for the same crime. After the carjacking statute was passed, people who used a firearm during the commission of a carjacking were not only subject to punishment under that statute but also faced mandatory punishment under 18 U.S.C.A. § 924(c), which outlaws the use or carrying of a firearm in relation to a violent crime. The issue came to a head in United States v. Singleton, 16 F.3d 1419 (5th Cir. 1994), when the presiding judge ruled that both the firearm portion of the carjacking statute and the gun statute proscribed the same conduct, and Congress had not shown that it would impose cumulative punishment under these two statutes. Therefore, the gun count in the carjacking statute violated the Double Jeopardy Clause.
Within several months of Singleton, amendments to the carjacking portion of the Anti-Car Theft Statute were debated in the House of Representatives and Senate. The result was a provision in the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 2119, which was signed by President bill clinton. The provision made two significant amendments to 18 U.S.C.A. § 2119. The first was that a death sentence can be handed down in cases in which a carjacking victim is killed. The second was that "possessing a firearm, as defined under section 921 of this title" was deleted and replaced with "with the intent to cause death or serious bodily harm." This removed the double jeopardy problem identified in Singleton.
Although carjacking has been made a federal crime, several states also have legislation on the subject. One is Florida, which has a big tourist industry. In the late 1980s and early 1990s, an increasing number of tourists, most of them foreign, were victims of carjackings in Florida. Because tourists in well-marked rental cars were common carjacking victims, Florida passed legislation in 1993 (F.S.A. § 320.0601) that outlawed company logos and license plates that made rental and leased cars obvious. Florida's legislators felt that tourists warranted this extra protection for three main reasons. First, tourists are, more often than not, unfamiliar with the area and are more likely to become lost or end up in a high-crime area. Second, tourists often carry more cash than natives, which makes them prime robbery targets. And finally, fewer tourists are likely to return and testify in court about a crime. By granting tourists the right to drive unmarked rental cars, Florida made them less vulnerable to the crime of carjacking.
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