Kidnapping

Background

In modern law, kidnapping is generally described as the crime of seizing and taking away a person by force or fraud.[1] However, at common law, kidnapping referred to a more specific action: the crime of forcibly abducting a person from his or her own country and sending the person to another.[2] Kidnapping may be categorized into various types of offenses, including:

Aggravated kidnapping: kidnapping accompanied by some type of an aggravating factor (e.g. injury to victim or demand for ransom). When kidnapping involves a demand for ransom, it can be categorized as a capital offense.

Child-napping: the kidnapping of a minor

Kidnapping by cesarean: the crime of forcibly abducting a person from his or her own country and sending the person to another[3]

Model Penal Code

Under the Model Penal Code (MPC), section 212 addresses kidnapping and related offenses. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:

(a) to hold for ransom or reward, or as a shield or hostage; or

(b) to facilitate commission of any felony or flight thereafter; or

(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.[4]

Usually, kidnapping is considered a felony in the first degree unless the defendant voluntarily releases the victim alive and in a safe place prior to the trial. In such a case, the kidnapping would be a felony in the second degree. In the MPC, unlawful confinement is defined as confinement accomplished by force, threat, deception, or, if the victim is under 14 or is incompetent, is accomplished without the consent of the child's parent or guardian.[5]

A related offense under the MPC addresses interference with custody. Under section 212.4, a person commits an offense if he knowingly or recklessly takes or entices any child under the age of 18 from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so.[6] This offense is generally categorized as a misdemeanor, unless the defendant acted with the knowledge or in reckless disregard that his actions would cause serious alarm for the child's safety. In such a case, the offense is considered a felony in the third degree.[7] A person also commits an offense if he knowingly or recklessly takes or entices any committed person away from lawful custody when he is not privileged to do so.[8] This offense is categorized as a misdemeanor.

Variation by Jurisdiction

California

California addresses kidnapping in Chapter 3 of Title 8 of its Penal Code. CA defines kidnapping generally as detaining or enticing a person by force, fear, or false misrepresentations and carrying that person into another country, state, or county (or another part of the same county).[9] Kidnapping is punishable by a prison term of three, five, or eight years.[10] If the victim of the kidnapping is under the age of 14, then the prison term may be five, eight, or eleven years.[11] The California Penal Code also discusses more specific crimes of kidnapping, such as kidnapping for ransom and kidnapping during the commission of a carjacking.[12] Kidnapping for ransom, under the 2008 CA Penal Code, was considered a felony. The punishment for the crime was life in prison.[13]

Maryland

Maryland section § 3-502, a person may not, by force or fraud, carry or cause a person to be carried in or outside the State with the intent to have the person carried or concealed in or outside the State.[14] Kidnapping is a felony in Maryland and if convicted, a defendant is subject to a prison sentence that does not exceed 30 years. Maryland also has a specific provision for child kidnapping, which applies when the victim is a child under the age of 12.[15]

Common Defenses

Duress may be a defense to kidnapping if 1) the defendant was under an unlawful and imminent threat inducing a well-grounded apprehension of death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in the situation; (3) that he had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of harm.[16] The belief of the accused that she or he was acting under the authority of the law may sometimes be a defense to kidnapping, depending on the wording of the statute.[17] Justifiable use of deadly force to restrain a victim who originally threatened the defendant may also be a defense to the charge of armed kidnapping.[18]

Foreign Jurisdictions

Germany

Section 234 of the German Criminal Code states that whoever seizes a human being by force, threat of appreciable harm or trickery, in order to abandon him in a helpless situation, place him in slavery or bondage or introduce him to service in a military or paramilitary institution abroad, shall be punished with imprisonment for not less than one year. 234(a) addresses abduction specifically. Section 239 deals with extortionate kidnapping (i.e. kidnapping for ransom). It states that whoever abducts or seizes a human being in order to exploit for purposes of extortion (Section 253) the victim's concern for his own welfare or the concern of a third person for the welfare of the victim, or whoever exploits for purposes of such extortion a human being's situation created by such an act, shall be punished by imprisonment for not less than five years. If the extortionate kidnapping at least recklessly results in the death of the victim, then the imprisonment duration can range from a ten year minimum to life.[19]

India

Under section 359 the Indian Penal Code, there are two types of kidnapping: kidnapping from India and kidnapping from unlawful guardianship.[20] The punishment for either for of kidnapping is imprisonment for not longer than seven years, and may include a fine.[21] Section 364(a) specifically addresses kidnapping for ransom. If a defendant is convicted of kidnapping for ransom, he is punishable by death, life imprisonment, and/or a fine.[22] The Indian Penal Code also has provisions for a variety of kidnapping crimes including, kidnapping a minor for the purposes of begging (section 363(a)), kidnapping in order to murder (section 364), kidnapping or abducting a woman for purposes of marriage (section 366), and kidnapping in order to subject a person to slavery (section 367).[23]

Kenya

The Kenyan Penal Code categorizes kidnapping into kidnapping from Kenya and kidnapping from lawful guardianship. Kidnapping from Kenya means that the defendant conveyed a person beyond the borders of Kenya without the consent of the person or of some person legally authorized on behalf of that person.[24] Kidnapping from lawful guardianship means the defendant entices a child under the age of fourteen from the keeping of the guardian, without the guardian's consent.[25] Another crime closely related to kidnapping is the charge of abduction, meaning that the defendant compels or deceitfully induces a person to go from one place to another (not necessarily out of the country or from the keeping of a lawful guardian).[26] Kidnapping and abduction are considered felonies.[27]


See Crimes

Notes

<references>
  1. Black's Law Dictionary, Kidnapping Defined, 9th Edition (2009)
  2. Black's Law Dictionary, Kidnapping Defined, 9th Edition (2009)
  3. Black's Law Dictionary, Kidnapping Defined, 9th Edition (2009)
  4. Model Penal Code, § 212.1 (2001)
  5. Model Penal Code, § 212.1 (2001)
  6. Model Penal Code, § 212.4(1) (2001)
  7. Model Penal Code, § 212.4(1) (2001)
  8. Model Penal Code, § 212.4(2) (2001)
  9. CA Penal Code, § 207(a) (2008)
  10. CA Penal Code, § 208(a) (2008)
  11. CA Penal Code, § 208(b) (2008)
  12. CA Penal Code, §§ 209-209.5 (2008)
  13. CA Penal Code, § 209 (2008)
  14. MD Penal Code, § 3-502 (2002)
  15. MD Penal Code, § 3-503 (2002)
  16. Joseph J. Bassano, Kidnapping Defenses- Corpus Juris Secundum, Dec. 2010
  17. Joseph J. Bassano, Kidnapping Defenses- Corpus Juris Secundum, Dec. 2010
  18. Joseph J. Bassano, Kidnapping Defenses- Corpus Juris Secundum, Dec. 2010
  19. http://www.iuscomp.org/gla/statutes/StGB.htm#234
  20. http://www.vakilno1.com/bareacts/indianpenalcode/S359.htm
  21. http://www.vakilno1.com/bareacts/indianpenalcode/S363.htm
  22. http://www.vakilno1.com/bareacts/indianpenalcode/S364A.htm
  23. http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode2.htm
  24. http://www.kenyalaw.org/Downloads/Acts/Penal%20Code%20Cap%2063(%202009Final%20Final).pdf
  25. http://www.kenyalaw.org/Downloads/Acts/Penal%20Code%20Cap%2063(%202009Final%20Final).pdf
  26. http://www.kenyalaw.org/Downloads/Acts/Penal%20Code%20Cap%2063(%202009Final%20Final).pdf
  27. http://www.kenyalaw.org/Downloads/Acts/Penal%20Code%20Cap%2063(%202009Final%20Final).pdf