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93.1 Simple Kidnapping

    93.1.3 Simple Kidnapping: Defenses And Defense Theories

    93.1.3.1 Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation
    93.1.3.2 Kidnapping: Good Faith Belief That The Victim Was Dead As Defense Theory
    93.1.3.3 Kidnapping: Consent As Defense
    93.1.3.4 Kidnapping: Mistaken Belief That Victim Consented
    93.1.3.5 Kidnapping: Defense Theory Of Consent -- Improper To Shift Burden To Defendant
    93.1.3.6 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
    93.1.3.7 Federal Kidnapping: Defense Theory That Kidnapping Terminated By Consent Prior To Interstate Travel
    93.1.3.8 Simple Kidnapping: Additional Defenses And Defense Theories

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RATIONALE: The abduction of a dead body should not be kidnapping under a statute which requires abduction of a person.

POINTS AND AUTHORITIES: In the context of sex offenses, it has been held that an element of the crime is that the victim was alive when the sex act was committed. (See e.g., FORECITE National™ 101.1.5.4 [Rape/Sex Crimes: Defense Theory That Victim Was Not Alive].) This is so because a dead body is not a "person" within the meaning of the applicable statutes.

    By a parity of reasoning, the statutes which proscribe kidnapping of a "person" also include as an element the requirement that the victim was alive during at least some portion of the alleged kidnapping. (See People v. Hillhouse (CA 2002) 27 C4th 469, 498 [117 CR2d 45] ["statutory references to a 'person' (Penal Code § 207(a)) or an 'individual,' as the kidnapping victim, clearly contemplate someone alive"]; People v. Miles (NY 1969) 23 NY2d 527, 536-538 [245 NE2d 688] [defendants could not be guilty of kidnapping if they believed their victim was dead]; Gribble v. State (TX 1990) 808 SW2d 65, 72, fn 16 ["moving [a dead body] from place to place does not under any circumstances constitute the offense of kidnapping"]; People v. Tolbert DEPUBLISHED (CA 1996) 49 CA4th 275 [56 CR2d 604]; see also Aburahmah v. U.S. (1995) 892 FSupp 1282, 1287; State v. Perkins (KS 1991) 811 P2d 1142, 1149; State v. Evans (KS 1992) 834 P2d 335, 338 ["following the rationale of Perkins [State v. Perkins, 811 P2d 1142] we conclude that the charge of aggravated kidnapping in this case required a live victim. 'Person,' as used in [the Kansas statute] implies a living person, and the circumstances when a kidnapping occurs require that the victim be living when the acts constituting the crime take place"].)

    Accordingly, when appropriate, instruction on the requirement that the victim be alive may be necessary.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: If the defendant believed that the victim was alive then there could be liability for attempted kidnapping. (See Notes to FORECITE National™ 101.1.5.5 [Rape/Sex Crimes: Good Faith Belief That Victim Was Dead As Defense Theory].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

See also generally, FORECITE National™ 305.11.1 [Kidnapping].

See FORECITE National™ 93.1.1.2 [Simple Kidnapping: Federal Circuit Model Instructions And Notes].

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RATIONALE: If kidnapping is defined as the abduction of a person, a good faith belief that the victim was dead should preclude conviction for kidnapping since there is no intent to commit the act proscribed by the statute.

POINTS AND AUTHORITIES: If the victim of an alleged kidnapping is dead, he or she is no longer a "person" who can be kidnapped. (See FORECITE National™ 93.1.3.1 [Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation].) Hence, if the defendant believed that the victim was dead prior to the asportation, the crime of kidnapping has not been committed. (See e.g., People v. Miles (NY 1969) 23 NY2d 527, 536-538 [245 NE2d 688] [defendants could not be guilty of kidnapping if they believed their victim was dead]; see also Gribble v. State (TX 1991) 808 SW2d 65, 72, fn 16 ["moving [a dead body] from place to place does not under any circumstances constitute the offense of kidnapping"]; People v. Tolbert DEPUBLISHED (CA 1996) 49 CA4th 275 [56 CR2d 604].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

See also generally, FORECITE National™ 305.11.1 [Kidnapping].

See FORECITE National™ 93.1.1.2 [Simple Kidnapping: Federal Circuit Model Instructions And Notes].

    Kidnapping is not committed if the defendant entertained a good faith belief that _____ (insert name of victim) was dead at the commencement of, and the duration of, the movement of _____ (insert name of victim). Therefore, the prosecution must prove that the defendant believed the victim was alive when the movement began.

    If from all the evidence you have a reasonable doubt whether the defendant believed _____ (insert name of victim) to be alive at the commencement of, and for the duration of, the movement, you must find [him] [her] not guilty of kidnapping.

[Source: FORECITE National™.]

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RATIONALE: Because lack of consent is essential to a charge of kidnapping, the instructions should assure that the jury understands the prosecution's burden with regard to consent.

POINTS AND AUTHORITIES: Lack of consent "is the very essence of the crime of kidnapping." (Chatwin v. U.S. (1946) 326 US 455, 464; see also U.S. v. Toledo (10th Cir. 1993) 985 F2d 1462, 1467; Armendariz v. State (CO 1986) 711 P2d 1268, 1270 [lack of consent is a necessary element of second-degree kidnapping under [the Colorado statute], and the prosecution must prove the absence of consent beyond a reasonable doubt]; State v. Zollo (CT 1995) 654 A2d 359, 365; State v. Niska (MN 1994) 514 NW2d 260, 265 [consent of child's mother, who was physical and legal custodian, was sufficient to relieve grandparents of any liability for kidnapping].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

See also generally, FORECITE National™ 305.11.1 [Kidnapping].

See FORECITE National™ 93.1.1.2 [Simple Kidnapping: Federal Circuit Model Instructions And Notes].

    When one consents to accompany another, there is no kidnapping so long as such condition of consent exists.

    To consent to [movement] [restraint], a person must:

    1.     act freely and voluntarily and not under the influence of threats, force or duress;

    2.     have knowledge of the [movement] [restraint]; and

    3.     possess sufficient mental capacity to make an intelligent choice whether or not to do something proposed by another person.

    If after consideration of all the evidence you have a reasonable doubt as to whether the asportation was without consent, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

    [If, after consideration of all the evidence, you cannot find beyond a reasonable doubt that the asportation was without _____________'s consent, you must find the defendant not guilty.]

[Source: FORECITE National™.]

    The essential nature of kidnapping requires that before you can convict you must find that the restraint and abduction were effected against the victim's will or at least without the victim's consent.

[Source: State v. Zollo (CT 1995) 654 A2d 359, 365-66.]

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    See generally FORECITE National™ 252.7 [Consent, Mistaken Belief].

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

See also generally, FORECITE National™ 305.11.1 [Kidnapping].

See FORECITE National™ 93.1.1.2 [Simple Kidnapping: Federal Circuit Model Instructions And Notes].

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RATIONALE: Unless the legislature has expressly made lack of consent an affirmative defense to kidnapping, it is error to impose any burden on the defendant to prove consent. Therefore, an explanatory instruction regarding the burden of proof as to consent may be appropriate.

POINTS AND AUTHORITIES: Any instruction on consent must be carefully drafted to avoid shifting the burden of proof. For example, in People v. Thompson (MI 1982) 324 NW2d 22, the trial judge instructed the jury:

    "Consent is a complete defense to the crime of kidnapping provided that you find the following:

    "First, that the victim's consent to go with the defendant was not obtained by fraud, duress or threats; and, secondly, that the victim's consent was present throughout the commission of the alleged offense. If you find both of those elements present, then you must return a verdict of not guilty to the charge of kidnapping."

    The court held that this instruction erroneously suggested that the burden of proof on the issue of consent was shifted to the defendant." (Id. at 24; see also Bush v. U.S. (DC 1986) 516 A2d 186, 194-95.) This is so because lack of consent is "the very essence of kidnapping." (See FORECITE National™ 93.1.3.3 [Kidnapping: Consent As Defense].) Absent express legislative intent to make lack of consent an affirmative defense as to which the defendant has the burden (see e.g., Russell v. United States (DC 1997) 698 A2d 1007, 1008), the burden of persuasion should remain with the prosecution.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 4.1].

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

See also generally, FORECITE National™ 305.11.1 [Kidnapping].

See also FORECITE National™ 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant].

See FORECITE National™ 93.1.1.2 [Simple Kidnapping: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 2:

    It is a theory of the defense that the prosecution failed to prove that _____________ (name of alleged victim) did not consent.  If, after consideration of all the evidence, you have a reasonable doubt that lack of consent was proven you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[See generally Bush v. U.S. (DC 1986) 516 A2d 186, 194-95.]

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RATIONALE: In jurisdictions where consent obtained by fraud negates a charge of kidnapping special instruction may be necessary to assure the jury understands that such a theory must be considered.

POINTS AND AUTHORITIES: In California, kidnapping can only be accomplished by use of threat or force. (People v. Green (CA 1980) 27 C3d 1, 64 [164 CR 1].) Hence, consent by the victim precludes a finding of kidnapping even if that consent was obtained by fraud, deceit or dissimulation (hiding under false appearance). (See People v. Davis (CA 1995) 10 C4th 463, 518 [41 CR2d 826].) Therefore, when the defense relies upon such a theory, the defendant should have the right to an instruction which explains the theory to the jury. (See FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

See also generally, FORECITE National™ 305.11.1 [Kidnapping].

See FORECITE National™ 93.1.1.2 [Simple Kidnapping: Federal Circuit Model Instructions And Notes].

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RATIONALE: Because the federal kidnapping statutes concerns interstate travel, it may be a valid defense theory that the victim consented prior to commencement of interstate travel even if the initial intrastate movement or restraint was involuntary. Without appropriate instruction on this theory, the jury may improperly assume that the initial lack of consent was sufficient.

POINTS AND AUTHORITIES: If the victim is no longer being held against his or her will, the kidnapping has ended, and the interstate travel cannot serve to further the commission of the crime. (See United States v. Chancey (11th Cir.1983) 715 F2d 543, 548.) As the Chatwin (Chatwin v. U.S. (1946) 326 US 455, 460 [66 SCt 233; 90 LEd2d 198]) court noted, Congress was concerned about "captors" "whisking" the victim across state line for "confinement and concealment." (Chatwin, 326 US at 462-63.) If an entirely intrastate kidnapping has terminated prior to any state laws being crossed, none of those terms apply, and the Congressional concern is inapplicable. (United States v. Macklin (2d Cir.1982) 671 F2d 60, 64; United States v. McBryar (5th Cir. 1997) 553 F2d 433, 433; U.S. v. Toledo (10th Cir. 1993) 985 F2d 1462, 1467; see also United States v. McCabe (8th Cir. 1997) 812 F2d 1060, 1061; Chancey, 715 F2d at 54.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

See also generally, FORECITE National™ 305.11.1 [Kidnapping].

See FORECITE National™ 93.1.1.2 [Simple Kidnapping: Federal Circuit Model Instructions And Notes].

    The prosecution must prove that the movement was against ___________'s will when the state boundary line was crossed. It is the defense theory that even if _______________ did not initially consent to the movement, [he] [she] subsequently consented prior to any crossing from one state to another.

    [If, after consideration of all the evidence, you cannot find beyond a reasonable doubt that the movement into another state was against ______________'s will, you must find the defendant not guilty.]

or

    [If, after consideration of all the evidence, you have a reasonable doubt as to whether the movement into another state was against ______________'s will you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[Source: FORECITE National™.]

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)