Kidnapping takes place when someone holds, seizes, or detains another person by employing strength or fear and removes that person to a different place against his or her will. Kidnapping is specifically defined by California Penal Code Section §207 as: “Every person who forcibly or by any other means of instilling fear, steals or takes or hold, detains or arrests any person in one county and takes them to another county or state or country.”
This is commonly known as “simple kidnapping” and is typically punished by incarceration in a state prison for 3, 5 or 8 years. Kidnapping of those under age 14 is punished by up to 11 years incarceration. Kidnapping with the inclusion of ransom or robbery (Penal Code 209) is classified as aggravated kidnapping and the penalty is lifetime imprisonment without the possibility of parole. If a kidnapping victim suffers bodily injury or is killed then the penalty changes to lifetime imprisonment without the possibility of parole.
Kidnapping Charges
Kidnapping is a felony, and is counted as a “strike” under California’s Three Strikes Law. Any force used during commission of a kidnapping need not be physical force; it can also include the threat of injury. In addition, the law dictates that, in determining whether the distance is ample, the judge or jury should think about whether said movement increased the risk of physical or psychological injury to the victim or whether the distance allowed the attacker to have an increased chance of perpetrating further crimes.
Parental Kidnapping
Each year, in the United States more than 200,000 children are kidnapped by a family member, in most cases this is by a non-custodial parent. California Penal Code Section 278 dictates the kidnapping or abduction of minors from legal parents or guardians. Any individual who does not have a legal right to custody and takes or conceals any minor child with the explicit intention of detainment or concealment of the child from a person with legal custody, if convicted, could face incarceration in a county jail or even state prison. Parental kidnapping is a serious charge, but is a wobbler, meaning that it can be classified as either a misdemeanor or a felony.
Kidnapping Defenses
In many kidnapping cases, there are a variety of valid legal defenses. The most frequently utilized defenses to a kidnapping charge are “Consent” and “Lack of Intent.”
Lack of Intent — The defendant is innocent of kidnapping if they rationally believed that the victim agreed to the movement. The prosecutor must prove beyond a shadow of a doubt that the defendant did not believe that the victim agreed to the movement. Failure to prove this by the prosecutor would result in the defendant being found not guilty of kidnapping.
Consent — This defense is also used frequently in kidnapping cases. The defendant is innocent of kidnapping if the other person willingly agreed to accompany the defendant. The prosecutor must prove beyond a shadow of a doubt that the victim did not agree to accompany the defendant. If the prosecutor cannot prove that the defendant kidnapped the victim against their will, the defendant must be found innocent of the charges.
Other defenses that can be utilized successfully include:
