Originally published by Cody L. Cofer.
What is Kidnapping?
Kidnapping is a serious criminal offense usually defined as the unlawful abduction of another person to achieve an objective or reward. The laws on kidnapping differ depending on the jurisdiction, but most include that the confinement or abduction must be unlawful and it must be done with an underlying purpose. The purpose of the kidnapping does not necessarily have to be a crime; it can include earning a ransom, interfering with a governmental function, or even just trying to scare someone.
The word “kidnapping” dates back to the late 1600s when thieves would “nab” (the -nap part of kidnap) children from their families and send them to the newly founded American Colonies to be servants and laborers. The common law that developed around this crime originally only applied to the transportation of a person to a different country against their will, but the law evolved and expanded over time, focusing less on transport and more on the unlawful abduction to accomplish an objective.
Kidnapping is now codified by statute in each state. The state legislatures looked to different theories of law in creating the statutes, leading to significant legal variations from state to state. Kidnapping is also criminalized under federal law. The federal kidnapping statute allows federal law enforcement to pursue cases in enumerated situations that affect government interests. The reach of the federal law has grown in recent years following court decisions on the use of technology and the internet.
Federal Kidnapping: The Lindbergh Act
Kidnappings are frequently high-profile news events because of the nature of the crime. In a country that prides ourselves on freedom, the theft and confinement of another human being is a particularly heinous offense. The most notable example is the abduction and murder of the famous aviator Charles Lindbergh’s son in 1932. It captured the attention of the entire country for years and even prompted Congress to create the Federal Kidnapping Act, also known as the Lindbergh act. 18 U.S.C. §1201.
Under federal law, a kidnapping occurs when a person “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person . . . .” 18 U.S.C. §1201(a). This intentionally broad definition includes virtually any unlawful restriction of liberty, through fraud or force, for the purpose of gaining some reward or objective. However, the kidnapping must also meet other limiting criteria stated by the Act to fall within federal jurisdiction.
What Makes Kidnapping a Federal Crime?
At its core, the federal statute requires that a kidnapping implicate a type of government interest. The law gives federal law enforcement agencies jurisdiction to pursue kidnapping investigations if the victim is taken across state lines, or if the person avails themselves of any service relating to interstate or foreign commerce to help with the crime.
If a kidnapped person is held more than 24-hours federal law creates a presumption that the victim was transported across state lines. 18 U.S.C. 1201(b). The presumption puts the burden of proof on an offender to provide convincing evidence showing victim was not transported across state lines. Otherwise, the court will automatically consider the kidnapping an interstate violation.
It is important to note that a person can be part of “interstate commerce” without ever crossing a single state line with the abducted party. U.S. v. Morgan, 748 F.3d 1024, 1033-34 (10th Cir. 2014). Specifically, the internet has been identified as an “instrumentality of interstate commerce.” Id. The court in Morgan also hypothesized that a GPS or cell phone might trigger the statute which means that potentially any kidnapping could be prosecuted federally if the perpetrator uses the internet to facilitate the crime in some way.
The statute also extends to kidnappings in the United States’ territorial waters or airspace, and when the person kidnapped is an employee of the United States government or an official from a foreign country.
Parental Abduction: Can You Kidnap Your Own Kid?
Although kidnapping now refers to anyone that is taken against their will, children in the United States are still frequently the victims of kidnapping, but for a different reason than the kids of the early Colonial days. Beyond the obvious reasons that children are more susceptible to kidnapping, they often get caught in the crossfire of divorces and custody disputes. However, the Federal Kidnapping Act specifically exempts parents from being penalized under federal law.
The reason for exempting parents comes from the idea that state governments are better positioned to manage their interests and the interests of their citizens. To that end, Congress enacted a parental kidnapping act that puts the burden of enforcing custody issues on state officials in most child custody cases. Therefore, you must look to the laws of the state where you reside to determine the penalties for state parental kidnapping laws.
On the other hand, a biological parent may not be exempted by the statute if they have had their rights terminated. In 1993 the kidnapping law was amended to define “parent” following a case where a woman kidnapped her two natural children from their home. U.S. v. Sheek, 990 F.2d 150 (10th Cir. 1993). The court found that “parent” as written in the statute included a biological parent even though she given up her rights to the children years before. Congress disagreed and immediately amended the statute to specifically exclude anyone that had their parental rights terminated by a final court order.
Penalties and Punishment for Federal Kidnapping Charges
Prior to the reform of capital punishment laws in the 1970s, kidnapping was a crime that could get you the death penalty in the United States. It is still a severely penalized offense, but it is no longer a capital offense unless a person dies or is killed. Most states classify it as a first or second degree felony depending on the existence of different aggravating circumstances. Examples of aggravating circumstances include use of a firearm, intent to commit a felony, or if the victim is under the age of 18.
The punishment for kidnapping committed under section 1201(a) in the United States Code is imprisonment for any term of years (determined by aggravating factors found in the Federal Sentencing Guidelines) or life in prison. There is a 20-year mandatory minimum sentence if the victim of a kidnapping is under 18 years old, and the offender is not a related adult or legal guardian. If the death of any person occurs during the kidnapping the punishment increases to life in prison or death.
The statute also penalizes conspiracy (agreement between two or more people to commit a crime) to kidnap harshly. Where a conspirator makes an overt step towards completion of the kidnapping, the penalty is imprisonment for a term of years or a life sentence. Attempted kidnapping has a maximum penalty of 20 years in prison.
from Texas Bar Today http://ift.tt/2a4i1aN
via Abogado Aly Website