You decide to pick up your kids from your ex-spouse’s home or from school. As you are driving down a Los Angeles city street, a police officer pulls you over and arrests you after an APB was issued stating you had taken your kids unlawfully. Could you be charged with kidnapping?
Kidnapping Governed by the California Penal Code
Kidnapping is the act of taking, holding, or detaining another person against his or her will by using force or by instilling reasonable fear, according to California Penal Code Section 207. A key element of kidnapping is that the movement has to have been done without the consent of the alleged victim. If you are convicted of kidnapping, it is a felony conviction punishable by up to eight years in a state prison.
A common example of textbook kidnapping is Person X and Person Y decide to kidnap Person Z. They waited until Z gets off work, grabbed and carried Z away placing Z into a van against their will. X and Y drive Z to an abandoned building two hundred miles away and called Z’s parents demanding ransom. Under this fact pattern, X and Y could be convicted of kidnapping, assault and battery, and false imprisonment.
What the Government Must Prove to Convict You of Kidnapping
Remember, when you are charged with a crime in California, the burden is on the state to prove beyond a reasonable doubt that you committed an illegal act. To convict you of kidnapping, the state must produce sufficient evidence to show the following:
- You took or detained another person by force or by instilling reasonable fear in that person;
- You used force or fear of force to move the other person a substantial distance;
- The other person did not agree to the movement; and
- You did not reasonably believe that the other person consented to the movement.
Defending Against Kidnapping Charges
There are various defenses that can be used to combat the criminal charge of kidnapping. Here are a couple examples:
- Reasonable Belief the Other Party Consented to be Moved: If you had a reasonable belief that the alleged victim consented to the movement, then you can fight the kidnapping charge. The first example where you picked up your kids from school in your spouse’s place would likely qualify for this defense.
- Actual Consent: If the alleged victim actually consented to being taken, then you are likely not guilty of kidnapping. Consent can be established by presenting evidence that the alleged victim freely and voluntarily agreed to go with or be moved by you, was aware of the movement, and had sufficient maturity and understanding to choose to go with you. The first example likely would not qualify for the actual consent defense, due to the fact that children are unable to consent because they do not have the capacity to understand a situation. This means a parent without lawful custody over a child cannot use the defense of actual consent to fight back against a kidnapping charge when taking his or her child.
Los Angeles Kidnapping Defense Lawyer
The Law Offices of Peter Berlin is ready and able to fight for your Constitutional rights. We offer years of experience handling many different areas of criminal defense including kidnapping. We provide a free, completely confidential consultation as well as 24/7 contact availability. Contact us now: (310) 289-5418.