The crime of kidnapping is defined as the use of force or fear to take a person and move him or her, a substantial distance. If convicted of kidnapping, the penalty can be up to 8 years in State Prison, or more if:
1) The victim was injured or abused;
2) If the victim was a child or;
3) if the kidnapping was done to facilitate another crime.
There are certain elements to the crime of kidnapping. They are:
(1) The kidnapper took, held, or detained another person by means of force or by instilling reasonable fear;
(2) Using that force or fear, the kidnapper moved the other person or made the other person move a substantial distance; and
(3) The other person did not consent to the movement.
Kidnapping is considered a serious Felony and is a “Strike Crime” under California’s “Three Strikes Law”. However, there are defenses to kidnapping. For example, a person is not guilty of kidnapping if he/she reasonably and actually believed that the other person consented to the movement. The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant did not believe that the other person consented to the movement.
Consent as a defense to kidnapping is discussed in more detail below. If the other person consented to go with the defendant, the defendant is not guilty of kidnapping. Consent is defined as:
(1) The person freely and voluntarily agreed to go with or be moved by the defendant;
(2) The person was aware of the movement, and
(3) The person had sufficient maturity and understanding to choose to go with the defendant.
Again, the prosecution has the burden of proving, beyond a reasonable doubt, that consent was not given. (It is important to note that consent may be withdrawn. If at first the person consented to go with the defendant but later changed their mind, the defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime outlined above.)
Other defenses may include:
1) The alleged movement was insufficient to be considered a kidnapping. As indicated above, the victim has to have been moved from one place to another but what constitutes “movement”. The movement has to have been substantial. It cannot be just a slight distance. However, there are several factors that will determine whether the movement was enough to constitute kidnapping. The actual distance moved is one factor. Also, did the movement increase the risk of harm to the victim and, was the movement enough to, or with the intent to, prevent the “kidnapper” from being caught.
2) You may have been present but, did not participate in the kidnapping; and
3) Mistake in identity.