10.4: Kidnapping

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Kidnapping criminalizes intentional nonconsensual restraint of another person. At common law, kidnapping was considered a relatively minor offense – it was a misdemeanor. Common law kidnapping was simply the unlawful confinement and carrying away of another person. The actus reas was twofold: (1) the defendant had to confine the person; and (2) the defendant had to transport the person, an act called asportation.See generally, Wayne R. LaFave, Substantive Criminal Law §18.1(a) (3rd ed. 2018). Common law treated kidnapping as a peripheral or tangential criminal offense – a means to an end. Modern criminal codes have expanded on the common law definition, both in terms of conduct and severity to focus on the dangers inherent in confining or transporting someone against their will. Kidnapping is no longer a peripheral crime.

Alaska defines kidnapping broadly. To be guilty of kidnapping, the defendant must restrain the victim with the specific intent to achieve a specific purpose. AS 11.41.300. Specifically, the defendant must intend to restrain the person for the purpose of (1) obtaining a ransom or payment; (2) using the person as a shield or hostage; (3) inflicting injury or sexual violence on the person; (4) interfering with an official government action; or (5) facilitating the commission of a felony. Further, Alaska has broadened the term “restraint”. Restraint means either restricting a person’s movement without their consent or moving the victim against their will, not both. AS 11.41.370 (3). Notice how at common law both confinement and asportation were required.

Although Alaska’s definition of restraint is broad, it is not without limits. To support a kidnapping conviction, the defendant’s restraint cannot be merely incidental to the target crime. Kidnapping requires substantial restraint. Thus, holding a person at gunpoint during a robbery will not be elevated to kidnapping even though the person’s movements are restricted. The defendant’s restraint of the victim must exceed what is necessary – either temporally or spatially – to commit the target crime. As described in the commentary to the Alaska criminal code revision,

[A] defendant who forces a victim who is jogging along a bike path into woods a few feet from the bike path in order to commit a sexual assault has not committed kidnapping. The “restraint” of the victim was too closely related to the sexual assault, both in time and the degree of movement, to qualify as a separate crime. However, if the victim was forced into the defendant’s car and then driven a block to a nearby deserted house and sexually assaulted, or sexually assaulted while his accomplice was driving the car, kidnapping has occurred.

See Alam v. State, 776 P.2d 345, 349 (Alaska App. 1989) (internal citations omitted).

As you can see, the line between “incidental” restraint and sufficient restraint is fuzzy. Courts and juries evaluate several factors in making their determination, including,

how long the victim was restrained;
if the victim was moved, how far the victim was moved and where the victim was taken;
whether, under the facts, the restraint exceeded what was necessary for the commission of the defendant’s target crime;
whether the restraint significantly increased the risk of harm to the victim beyond the risk of harm inherent in the target crime itself; and
whether the restraint had some independent purpose – i.e., whether the restraint made it significantly easier for the defendant to commit the target crime or made it significantly easier for the defendant to escape detection.

See Hurd v. State, 22 P.3d 12 (Alaska 2001).

Example of Incidental Restraint

Joseph breaks into Abby’s home and sees Abby sitting on the couch. Due to the layout of the house, the couch is in front of a large picture window, in full view of the street and sidewalk. To avoid detection, Joseph grabs Abby off the living room couch and drags her into the bedroom to sexually assault her. Joseph has probably not committed the crime of kidnapping. Joseph forcibly restrained Abby and moved her into the bedroom without her consent, but her movement from the couch to the bedroom appears to be incidental to the target crime of sexual assault.

Example of Sufficient Restraint

Let’s change the example with Joseph and Abby. Assume that after Joseph breaks into Abby’s home, he drags her out of the house, stuffs her into the trunk of his car, and then drives 50 miles to a deserted river where he sexually assaults her. Joseph has committed the crime of kidnapping (in addition to a host of other crimes). The restraint and movement of Abby were beyond what was necessary to commit the target crime. Abby was restrained in the trunk of a car, moved over 50 miles, and the restraint made it substantially easier for Joseph to commit the target crime.

Penalty

Because of the significant dangers associated with kidnapping, modern criminal codes view kidnapping as a very serious offense. All states impose harsh penalties for kidnapping, including life or 99-year sentences. Alaska is no different. In Alaska, kidnapping is an unclassified felony offense (the most serious classification), punishable by up to 99 years in prison.

Custodial Interference

The Legislature has largely removed child custody disputes from the definition of kidnapping. To eliminate kidnapping charges from child custody disputes, the Legislature has enacted the crime of custodial interference. Custodial interference is designed to protect the person who has lawful custody and control of a child. The willingness of the child is irrelevant. To commit the crime of custodial interference the defendant must be a relative of the child (or incompetent person) who knows that he or she has no legal right to take or keep the child from the lawful custodian. Lawful custodian includes state institutions as well as parents and guardians. If the defendant intends to hold the child for a protracted period of time and causes the child to be taken outside Alaska, the crime is custodial interference in the first degree, a class C felony. If the child is not taken out of state, the crime is custodial interference in the second degree, a class A misdemeanor.

Note that the offense focuses on a substantial interruption in the custody arrangement. Custodial interference does not deal with the situation where the non-custodial parent merely fails to comply with a custody order when there is no intent to hold the child for a protracted period.

Exercise

Answer the following question. Check your answer at the end of the chapter.

Coby is in the process of robbing a bank. When a security guard threatens to shoot Coby, he grabs a customer in the bank and holds a knife to her throat. Coby thereafter demands a getaway vehicle and fifty thousand dollars in cash in exchange for the hostage’s release. Has Coby committed kidnapping? Why or why not?