Elements Of Kidnapping And Related Offenses
As stated above, kidnapping statutes punish the taking or unlawful restraint of both minors and adults. Kidnapping and abduction laws may be triggered even if there is no carrying away. If the restraint is substantial enough to interfere with the victim's liberty, the perpetrator my be convicted under most kidnapping laws. A restraint occurring even in the victim's own home has been held to be a kidnapping where the rescue of the victim is unlikely (Darrow v. Wyoming, 824 P.2d 1269 (Wyoming, 1922)).
While kidnapping at common law was classified as a misdemeanor, almost every jurisdiction now lists it as a felony. The current punishment authorized by the federal Lindbergh Law is imprisonment from ten years to life. Some jurisdictions provide different degrees of kidnapping, with first-degree kidnapping being elevated from second-degree kidnapping based on any harm to the victim. While the Lindbergh Law does not separate kidnapping into degrees of severity, the Federal Sentencing Guidelines instruct a greater sentence based on the harm to the victim, or where a gun was used in the kidnapping.
The U.S. Sentencing Commission has provided various guidelines for the increase in punishment depending on the nature of the kidnapping. For example, when the victim is under the age of eighteen, and not a relative of the perpetrator, if the victim was intentionally mistreated (denied either food or medical care) to a life-threatening degree, the punishment is increased by four levels. If the victim was sexually exploited, the punishment is increased by three levels. The federal sentencing guidelines provide a two-level increase in the offense level for kidnapping if a defendant uses a gun or other dangerous weapon to commit the offense.
While the death penalty is no longer authorized by the Lindbergh Law, the death penalty is still applicable under federal law if the victim dies, which can trigger the felony murder doctrine and/or a conviction of first-degree murder. The death penalty with regards to state laws is almost certainly unconstitutional as well, absent the death of the victim. The Supreme Court has never held that a state law authorizing the death penalty for kidnapping alone is unconstitutional. But the Court has held that the death penalty for kidnapping and rape under state laws, where the victim is not killed, is cruel and unusual punishment under the Eighth Amendment, which is applied to the states via the Fourteenth Amendment (Coker v. Georgia, 433 U.S. 584 (1977)). One can easily surmise that if the death penalty were cruel and unusual in the context of a kidnap and rape, it would certainly be the same for kidnapping alone.
Many kidnapping statutes either have provisions covering ransom activity, or are construed in correlation with related ransom statutes. For example, 18 U.S.C. § 1202 is an extension of the Lindbergh Law (18 U.S.C. § 1201), and punishes the act of receiving or possessing money that was delivered as a ransom.
Legislative attention to parental kidnapping. Parents can be held liable for abducting their own children in violation of child custody orders, or even keeping their children too long beyond their legal visitation period. But note that absent a court order of custody rights, parents have equal rights to the custody of a child. A kidnapping or abduction statute is much less likely to cover acts of one parent taking a child from the custody of another unless there has been a court order dividing the custody rights. And, of course, a parent who "steals" a child from another parent will not be found guilty if the stealing parent was legally entitled to custody. These activities between parents are also regulated by child custody statutes of each state.
Because each state has its own child custody laws, there was predictably much confusion surrounding cases where a child was abducted by a parent and taken to a different state. The federal Lindbergh Law has long been held to be inapplicable to cases of parental kidnapping. Thus, in 1968 the National Conference of Commissioners on Uniform State Laws drafted the Uniform Child Custody Jurisdiction Act (UCCJA). The resolution provided standards for determining when a state may take jurisdiction of a child custody dispute, when other states are prohibited from intervening in such disputes, and when states must honor the custodial decisions of their sister states. Although most states adopted statutes enacting the UCCJA, there were many different versions and interpretations of the laws, resulting in further confusion. Congress responded in 1980 with the PKPA or Parental Kidnapping Prevention Act (28 U.S.C. § 1738A). The PKPA imposed a duty on states to enforce the decisions of a sister state, as long as the decision was consistent with the PKPA. The PKPA itself has guidelines very similar to the original UCCJA for when a state may or may not exercise custody jurisdiction over a child. The overall goal of preventing parents from kidnapping their children and taking them to other states in order to avoid child custody has been met with mixed results. (For a critique of these laws, see Goldstein.)
While the United States has struggled to regulate parents unlawfully taking children from state to state, international parental abductions—the act of one parent unlawfully taking a child to a foreign country—have increased dramatically in recent decades, perhaps due to the increases made in communication technology and transportation. In 1980, an international convention known as the Hague Convention on the Civil Aspects of International Law adopted a resolution regarding international parent abductions. In 1988, Congress finally passed the International Child Abduction Remedies Act (42 U.S.C. § 11601), which enacted provisions in compliance with the Hague Convention. Before this time, there was no remedy for a parent when his or her child was taken to a foreign country. Now, if the child is wrongfully held by a parent in a country that is a signatory to the Hague Convention, the aggrieved other parent may apply to the foreign country for prompt return of the child. Roughly forty-seven nations are signatories of this convention.
But because the Hague Convention does not authorize criminal punishment upon the abducting parent, and because many nations are not signatories to the Hague Convention, Congress passed the International Parental Kidnapping Crime Act of 1993 (18 U.S.C. § 1204). This act makes it a federal crime for a parent to wrongfully remove or retain his or her child outside the United States. This act also increases the remedies available for the left-behind parent to reacquire the child, at least in cases involving countries with which the United States has criminal extradition treaties. However, despite all the efforts of Congress and the international community, returning children that have been abducted to foreign countries remains an activity that is very difficult to regulate.
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