What Is Kidnapping and Aggravated Kidnapping? Defenses?
Make no mistake about it: both kidnapping and aggravated kidnapping are serious crimes with huge punishment if a conviction is reached. They are both “strike offenses” under California’s Three Strikes law, meaning one must serve a minimum of 85% of the sentence, which can be well over ten years if there are sentence enhancements such as for using a gun, causing serious bodily injury or committing the offense for the benefit of a criminal street gang.What to Take Away: Kidnapping is broadly defined as moving another person a substantial distance by force or fear without the other person’s consent. Aggravated kidnapping is kidnapping accompanied by serious bodily injury to the victim, or a ransom demanded, or carjacking, or fraud, force or fear upon a victim under age 14.
A “kid” does not need to be even involved. Often, kidnapping is committed and charged in the course of domestic violence (Penal Code § 273.5), carjacking (Penal Code § 215), rape (Penal Code § 261), child abduction (Penal Code § 278) and sometimes, lewd acts with a minor (Penal Code § 288).
Aggravated kidnapping is far more serious, as it carries with it a potential life term in prison. Aggravated kidnapping typically involves four scenarios which are fairly common. They are: 1) kidnapping that causes the victim serious bodily harm or death; 2) kidnapping that involves a demand for a ransom; 3) kidnapping taking place concurrent with a carjacking; and 4) kidnapping based on fraud, force or fear of a victim who is under age fourteen.
“By force or fear” in the definition of both types of kidnapping means threatening to inflict physical force or actually doing so. Tying someone up obviously qualifies, just as does, in the domestic violence context, telling a girlfriend that you are going to “make her pay for her mouth” if she does not get in one’s car and come with the driver.
The defenses to kidnapping usually begin with the victim’s consent. If the victim agrees to get in one’s car and be moved, there can be no kidnapping. It merits emphasis here that one cannot agree to an offer or promise based on fraud because the victim does not know what he or she is actually agreeing to.
A derivative defense to consent is that the victim’s claims are false. This may mean that the distance of the movement was very trivial or that no increase in danger resulted. It can also mean that the defendant never used force or fear to accomplish the movement.
By statute, a defendant’s conduct may be privileged. For example, taking, concealing or otherwise harboring a child under 14 to protect the child from imminent danger is a defense under Penal Code § 207(f)(1). This defense arises quite often. A defendant may also be innocent under 207(f)(1) if he or she places the child under a citizen’s arrest, i.e. a shopkeeping making a citizen’s arrest of a shoplifter.
For more information about issues related to kidnapping, click on the following articles:
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