Penal Code Section 207 States:
“(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.
(b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.
(c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping.
(d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.
(e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.
(f) Subdivisions (a) to (d), inclusive, do not apply to any of the
(1) To any person who steals, takes, entices away, detains, conceals, or harbors any child under the age of 14 years, if that act is taken to protect the child from danger of imminent harm.
(2) To any person acting under Section 834 or 837.”
Kidnapping is an aggravated form of ‘false imprisonment’.
It usually involves the transportation or concealment of the person. The crime of Kidnapping can be elevated to ‘Aggravated’ kidnapping in any of the following ways:
- If the victim of the kidnapping is a child.
- If the Kidnapping is conducted for ransom
- If the Kidnapping is conducted for the purpose of committing another crime (such as forcing the kidnapped person to commit robbery)
- If the Kidnapping is conducted for the purpose of committing a sexual offense.
- If the Kidnapping is conducted with the intent of harming the victim.
*Please note* A parent can be prosecuted for kidnapping his or her own child even if the parent merely interferes with the custody or visitation rights of the other parent.
It is irrelevant which parent has legal custody. If a parent conceals his or her child with the intent of depriving the other parent of custody or visitation, or interfering with the other parent’s rights, he or she can be prosecuted for the crime of kidnapping and a variety of other offenses.
Kidnapping is a commonly misunderstood crime. It need not be performed by a stranger to a child. Parents who are not obeying custody and visitation arrangements are frequently arrested for, and convicted of, kidnapping or the lesser included offense of Child Abduction. The same is true of people in dating or marital relationships who, while driving during an argument, merely do not allow the non-driver to simply get out of the vehicle.
KIDNAPPING: What the Prosecutor Must Prove Beyond a Reasonable Doubt:
Jury Instruction 1215. Kidnapping
The defendant is charged [in Count ] with kidnapping [in violation of Penal Code section 207(a)].
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant took, held, or detained another person by using force or by instilling reasonable fear;
2. Using that force or fear, the defendant moved the other person [or made the other person move] a substantial distance;
[AND]3. The other person did not consent to the movement
<Give element 4 when instructing on reasonable belief in consent.>
[4. The defendant did not actually and reasonably believe that the other person consented to the movement.]
[In order to consent, a person must act freely and voluntarily and know the nature of the act.]
Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement.
[Thus, in addition to considering the actual distance moved, you may also consider other factors such as [whether the distance the other person was moved was beyond that merely incidental to the commission of <insert associated crime>], whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.]
<Defense: Good Faith Belief in Consent>
[The defendant is not guilty of kidnapping if (he/she) reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.]<Defense: Consent Given>
[The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if (he/she) (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime.
[Consent may be withdrawn. If, at first, a person agreed to go with the defendant, that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime as I have defined it.]]