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Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 252
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252.6 Consent, Actual

    252.6.3 Consent: Kidnapping

    252.6.3.1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
    252.6.3.2 Consent As Defense To Kidnapping: Reasonable Belief Versus Actual Consent

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 252

RATIONALE: Without special instruction the jury may not understand that asportation by fraud or deceit is not kidnapping.

POINTS AND AUTHORITIES: Kidnapping can only be accomplished by use of threat or force. (See e.g., 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, at a minimum, when the defense relies upon such a theory, there should be a right to an instruction on the theory upon request.

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

    Asportation which is accomplished by fraud, deceit or other false appearance is not kidnapping. In other words, even if the defendant's consent was obtained by fraud, deceit or other false appearance, the existence of such consent precludes a finding of kidnapping. If after consideration of all the evidence you have a reasonable doubt whether the asportation was accomplished by fraud, deceit or other false appearance, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[Source: FORECITE National™.]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 252

RATIONALE: Even if the victim did not actually consent, the defendant's reasonable belief that there was consent negates criminal intent and should be the basis for a defense theory instruction.

POINTS AND AUTHORITIES: A defendant's reasonable belief that the victim consented to the restraint or asportation may be a defense to kidnapping. (See e.g., People v. Mayberry (CA 1975) 15 C3d 143, 155 [125 CR 745] [reasonable good-faith belief, even if mistaken, that the victim consented to accompany the defendant and engage in sexual intercourse with him, is a defense respectively to kidnapping and forcible rape]; see also Bidwell v. State (AK 1983) 656 P2d 592, 595.)

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

    Even if consent was never given [or was given and terminated during the asportation], there still is no kidnapping if the defendant entertained a reasonable and good faith belief that consent was given.

[Source: FORECITE National™.]

    It is a defense to a charge of kidnapping that the defendant entertained a reasonable good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the alleged kidnapping.

    If you have a reasonable doubt whether or not the defendant reasonably and in good faith believed that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the said movement, you must give the defendant the benefit of that doubt and find the defendant not guilt of kidnapping.

[Source: FORECITE National™.]