Patterico's Pontifications


A Criminal Law Question: Is this Kidnapping?

Filed under: Crime — DRJ @ 8:08 pm

[Guest post by DRJ]

Can you be arrested for kidnapping a woman if you didn’t know she was there and she never knew she had been kidnapped?

“Police found a car that was stolen early this morning while a woman slept in the backseat, and she never awoke through what otherwise might have been an ordeal.

She was still snoozing there when police found the abandoned car about six hours later, they said, and she remembers nothing.

As for the thief, he apparently got more than intended at 3:30 a.m. when he took a car that came with a slumbering woman.”

This sounds like a law school hypothetical but it’s real.


26 Responses to “A Criminal Law Question: Is this Kidnapping?”

  1. Why stop there?

    Suppose you kidnapped a person, took them across the international date line, and released them the day before you kidnapped them?

    Would that be a crime?

    Jayc (b6d730)

  2. It happened in Kansas. The Kansas kidnapping statute says….

    Kidnapping. Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:

    (a) For ransom, or as a shield or hostage;

    (b) to facilitate flight or the commission of any crime;

    (c) to inflict bodily injury or to terrorize the victim or another; or

    (d) to interfere with the performance of any governmental or political function.

    Kidnapping is a severity level 3, person felony.

    History: L. 1969, ch. 180, § 21-3420; L. 1992, ch. 239, § 58; L. 1993, ch. 291, § 33; July 1.

    So, if the guy gets a good lawyer, he should be able to beat the kidnapping rap, because the intent was missing.

    Andrew (3c80d4)

  3. Further, there was no force, threat or deception.

    Have Blue (854a6e)

  4. California is different. No intent required; he forcibly (not with her permission) ‘stole’ the victim along with the vehicle. GUILTY. NEXT!!

    207 Penal Code. (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.

    ManlyDad (060305)

  5. I’m sorry Mr. Manly, please show us where there is force or fear? This is the ultimate issue.

    We probably don’t even have a false imprisonment.

    That doesn’t mean we shouldn’t take the thief out and shoot him.

    Alta Bob (e8af2b)

  6. If he had not stolen the vehicle (a felony) then MAYBE it’s not a crime.

    The ‘kidnapping’ occurred during the felony act of motor vehicle theft puts it over on the crime side. As to whether he would be charged with kidnapping, that will depend on if there is a similar or lesser offense that fits his actions. It’ll also depend on the DA and the guys arrest/conviction record looks like and if there was NO WAY the guy knew she was there. I’m guessing he also gets charged with Kidnapping and is offered a plea that drops that charge in return for his guilty on the Grand Theft Auto (or possibly receiving stolen property or unauthorized use depending on the circumstances cause we don’t know the details).

    DA looks good and gets a conviction, the guy gets some time for his stupidity and justice is done.

    jakee308 (a7c45e)

  7. Is kidnapping a specific intent crime? If not, then his intentional theft of the motor vehicle made him guilty of all proximately caused consequent crimes.

    nk (db4a41)

  8. But Kansas has some very stupidly written criminal statutes. Did you know that if you kill someone you can claim self-defense, but if you only frighten them off by brandishing your gun you cannot, in Kansas? I swear, it’s a recent Sunflower State Supreme Court ruling. Quantrill must have killed off all the smart people and let the idiots propagate.

    nk (db4a41)

  9. If they can’t sustain a kidnapping charge, maybe they could charge the thief with endangering her by leaving her alone in the vehicle in a strange place — especially if the thief took or threw away the keys.

    DRJ (daa62a)

  10. My opinion (as a potential juror and decider of guilt): the force is the taking of the vehicle with a person in it. Objection or resistance by the victim is irrelevant–suppose it had been a baby (as has happened on occasion?)


    ManlyDad (060305)

  11. On a technical level, and in many jurisdictions, it probably can be classed as kidnapping, but morally, as a juror, I’d refuse to convict on it based on what has been revealed here. It took an odd confluence of events to make that the case, but there is a degree of intent behind kidnapping which I don’t believe exists.

    Further details might alter that statement.

    IgotBupkis (79d71d)

  12. > suppose it had been a baby (as has happened on occasion?)

    A baby is a special case, much as any of the protected sub-adult classes of individual. They are not presumed competent to provide informed consent, so any movement without authority constitutes “force”.

    Suppose the car was taken with a baby, the baby dropped off in a suitable place where proper care would be provided, and the car was then taken?

    Probably still kidnapping but I’d have to know how it would be treated by the officials. If I believed leniency would be applied with regards to the kidnapping charge, I’d likely convict, but not otherwise, as the dropping off would constitute at least mildly responsible social behavior, and that should be acknowledged.

    IgotBupkis (79d71d)

  13. jakee308:
    If he had not stolen the vehicle (a felony) then MAYBE it’s not a crime.

    I don’t live near D.C. anymore, but they solved the auto theft problem in a very imaginative way, by eliminating the felony and defining a new misdemeanor of “Unauthorized Use of an Automoble.”

    GaryC (ea4bfa)

  14. What about the “Rangel Rule”?

    Maybe the thief’s staff knew about it, but the thief didn’t? Then the thief is never, ever guilty of anything?

    Actual (9cfb5e)

  15. Let’s flesh this story out with some assumptions.
    A 23 year old driver stops at a convenience store at 0330; a 22 year old woman is “asleep” in the back seat–and is still “asleep” at 0930 when the police find the car.

    In any state but Kansas (large parts of which are “dry”) I’d bet that the young lady was “sleeping it off” after more than a few beers–and that her youngish driver was going to the store to get some more.

    Mike Myers (3c9845)

  16. For all you armchair geniuses pontificating on Kansas and Kansas law … this incident occurred in Kansas City, MISSOURI. Which is in, you know, MISSOURI.

    Carry on.

    Tully (4dce1a)

  17. Of course it’s kidnapping.

    If the car thief had instead shot her in her sleep, and she died without ever waking up, would it be murder?

    As for the kidnapper not knowing she was there – so what? When he stole the car, he stole everything in it. In this case, that included a person. Tough luck for him, now he gets a much longer prison term. Lesson: don’t steal stuff. The consequences may be worse than you had considered.


    Zirbert (da1200)

  18. Oh geez. Some people are so picky. Missouri, Kansas, what’s the big diff?

    Okay, here’s the Missouri kidnapping statute….


    565.110. 1. A person commits the crime of kidnapping if he or she unlawfully removes another without his or her consent from the place where he or she is found or unlawfully confines another without his or her consent for a substantial period, for the purpose of

    (1) Holding that person for ransom or reward, or for any other act to be performed or not performed for the return or release of that person; or

    (2) Using the person as a shield or as a hostage; or

    (3) Interfering with the performance of any governmental or political function; or

    (4) Facilitating the commission of any felony or flight thereafter; or

    (5) Inflicting physical injury on or terrorizing the victim or another.

    2. Kidnapping is a class A felony unless committed under subdivision (4) or (5) of subsection 1 in which cases it is a class B felony.

    (L. 1977 S.B. 60, A.L. 2004 H.B. 1487)

    In this case, the kidnapper did not purposely move the victim. Case closed.

    Andrew (3c80d4)

  19. California Penal Code Section 207 says:

    “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.”

    So what does forcibly mean?

    I don’t think stealing the vehicle constitutes using force against someone whose presence is not known.

    Zirbert – the analogy to murder is not valid, at least in California; deaths caused during the commission of certain felonies are defined to be murder, but unknowing seizing of persons caused during the commission of theft is not defined to be kidnapping.

    I think this could be argued both ways, but my sense is that ‘force’ as applied elsewhere in the law doesn’t encompass this situation. I don’t take your car by force unless I use a show of strength to intimidate you into not resisting or to stop resisting; similarly there’s no force if I take the car and you’re sleeping in it.

    aphrael (9e8ccd)

  20. I also think the results could vary by jurisdiction, aphrael, depending on the wording of the applicable statutes and the case law interpreting them.

    DRJ (daa62a)

  21. That’s right. Neither SCOTUS nor Congress have federalized the matter — yet.

    Andrew (3c80d4)

  22. DRJ: that’s a fair point; I’m speaking of California and can’t speak outside California.

    Basically my theory is that various laws which provide stiffer penalties for doing [x] with force than for doing it without force define force to be the active use of threat or intimidation to either squelch or prevent resistance. That is to say, taking your computer from you while you’re in the bathroom is one crime; threatening you until you give me your computer is another one – and only the latter crime uses ‘force’.

    So I don’t see how there’s ‘force’ in abducting a sleeping victim that you don’t know is there.

    aphrael (73ebe9)

  23. BTW & FWIW, the total distance between where the vehicle was stolen and where it was found is about eight blocks.

    Tully (4dce1a)

  24. That’s not so, aphrael. Think of force as other than persuasion. That is, basically, the legal definition, in criminal and civil law. If your landlord comes to your apartment while you are not there, opens the door with his passkey, moves your furniture out into the street, and changes the door locks, he has evicted you by force.

    nk (db4a41)

  25. This isn’t eviction we are talking about: It is kidnapping. Since this thief didn’t see that the “victim” was in the backseat sleeping, did not move her, did not hold her by force, did not forcibly put her in the car or threaten her in any way with staying against her own free will, I think he can beat this charge with the right representation.

    Defense Attorney New York City (14d237)

  26. Hi NK: I don’t know about the eviction case, but in general I think force must require some element of interaction between the perp and the victim. Otherwise, as I said before, there’s no difference between robbery and forcible robbery – but it’s clear that many statutes contemplate different punishment contingent on that difference.

    California courts seem to agree with this in the case of kidnapping, at least. “An essential element of kidnapping is that the will of the victim be overcome by the use of force or by any other means.” (People v. Duran, 106 Cal.Rptr.2d 812, 817; Cal.App. 4 Dist., 2001). There’s an exception to this if the victim is a young child, but for adults it seems to hold. The California Supreme Court hass explicitly said that “If a person’s free will was not overborne by the use of force or the threat of force, there was no kidnapping.” (People v. Hill, 23 Cal.4th 853, 2000, citing to People v. Moya, 4 Cal.App.4th 916, citing to People v. Stephenson, 10 Cal.3d 659). In this case it seems pretty clear that one cannot overbear the free will of a sleeping person one does not know is present.

    aphrael (e0cdc9)

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