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What Is Kidnapping?
Kidnapping is an unlawful act or an instance of taking a person without consent, by force or fraud. Kidnappings can occur by family members, as well as strangers.
It is also considered kidnapping when a person has confined another person without his/her consent for a substantial period of time if any of the following five (5) criteria met:
- Holding the individual for ransom or reward
- Using the individual as a hostage or shield
- Interfering with performance of any governmental function
- Facilitating the commission of any felony
- Inflicting physical injury on or terrorizing the victim
Is Kidnapping a State or Federal Offense?
Under federal law, kidnapping can be a serious felony offense, with prison sentences of 20 or more years depending on the felon's criminal history. Kidnapping can be a state or federal offense depending upon the circumstances:
- State - Kidnapping charges vary from state to state. For example, in some locations, kidnapping occurs where the victim is compelled to remain against his or her will. In other locations, a person commits kidnapping where a victim is moved a specific distance by force.
- Federal - Kidnapping that crosses state lines is automatically considered a federal felony. Under the Federal Kidnapping Statute, the FBI may get involved in a kidnapping case.
What Can Happen if You Are Convicted of Kidnapping?
Kidnapping is a serious offense and one can face many harsh penalties if convicted of a kidnapping charge, especially if the kidnapping is aggravated. Some penalties for a kidnapping conviction may be:
- Jail time
- Fines and/or restitution
- Court enforced counseling
- The death penalty
- Life in prison with the possibility of parole
- Life in prison without the possibility of parole
- Other sentences
What Factors Influence the Sentence Imposed?
External factors such as your criminal record, current criminal status, and how a judge and/or jury views these crimes will influence the sentence for kidnapping. Any aggravating factors may also impact the sentence. For example, the purpose of the kidnapping is important. If the kidnapping was does as a means towards murder, rape, or carjacking, then the sentence will certainly go up.
What Are the Defenses To a Kidnapping Charge?
There are a number of defenses to kidnapping:
- Failure to Establish All the Elements – It is not kidnapping if the prosecution fails to establish that there was taking, or that the taking was unlawful, or the “victim” did not give consent, or that there was force or fear in order to override that consent. Even if all of the elements are not met, the defendant may still be convicted of a lesser offense such as unlawful restraint.
- Consent of the Victim – There is no crime if the victim consented to being moved
- Lawful Taking – If the defendant had a legal right to take the victim, such as a valid court order in a child custody dispute or a citizen’s legal arrest, then there is no kidnapping
- Mistake of Fact – If the defendant had a reasonable mistake about the victim’s consent, then the sentence would likely be significantly reduced. In a few rare situations, a defendant who could do a lawful taking of a certain individual may argue a mistake of identity if the defendant commits a taking of the victim under the mistaken belief that the victim is the other person.
- Double Jeopardy – If the defendant is accused of kidnapping or order to commit another crime, such as rape, the prosecution cannot use the kidnap charge if the prosecution is already using kidnap as an aggravating factor for rape because that would essentially be charging the defendant with two counts of kidnapping the same person.
What is the Difference between Kidnapping and False Imprisonment?
Kidnapping is simply the act of moving another person against their consent. False imprisonment is the act of detaining someone and preventing that person from leaving. Although kidnapping often results in false imprisonment, it is possible to be kidnapped without being falsely imprisoned.
False imprisonment is also a tort claim under civil law; a victim of false imprisonment can sue the defendant in civil court to recover money for being false imprisoned. A person accused of false imprisonment can be punished by the state for criminal false imprisonment and sued by the victim for damages. Kidnapping, on the other hand, is mostly a criminal violation without a parallel civil claim. There is typically no victim compensation in civil law for kidnapping.
What Can You Do If You Have Been Accused of Kidnapping?
If you have been charged with a kidnapping charge, contact a criminal defense lawyer immediately. Kidnapping is a felony and carries serious consequences. An experienced state or federal criminal defense specialist can help explain your defenses and options.
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Last Modified: 09-12-2016 09:54 PM PDT
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