Applying the Elements

Applying the Elements

Common-law kidnapping is built on false imprisonment, so a fact pattern should be sorted from the base offense up to the aggravator. At common law, false imprisonment was the misdemeanor of unlawfully confining a person without that person's valid consent, and kidnapping was the misdemeanor of forcibly abducting or carrying away a person from his own country and transporting him into another.¹ The older authorities describe kidnapping as aggravated false imprisonment, which means it contains the base offense and adds one element, the cross-border removal.² That structure dictates the order of analysis. The base offense comes first, because the removal question has nothing to attach to if no one was unlawfully confined. The removal question comes last, because it decides only which grade of offense the conduct reaches, and stopping at the right grade avoids charging as kidnapping conduct that lacks the aggravating element.

Steps two and three overlap by design. Confinement is unlawful unless a specific legal rule authorizes it or the confined person validly consents, so consent is one of two ways the law can make a confinement lawful, and the inquiry into coercion, deception, and incapacity decides whether an apparent yes counts.⁷ A failure at any of the first three steps means there is no offense at all, while a failure at the fourth leaves false imprisonment. Taking the steps one at a time also matches the burden of proof, since the prosecution must establish every essential element of a crime beyond a reasonable doubt, and a separate question for each element shows where the proof is complete and where a gap leaves the charge short.⁸

The first two steps are easiest to see in matched pairs. Confinement requires compulsion, and the actor does not confine a person merely by blocking one route when the person has a reasonable alternative.⁹

Unlawfulness turns on authority. A confinement the law authorizes is lawful however much the person objects.

Step three applies the consent material from the preceding subsections: the analysis fixes what the person agreed to, asks whether a threat or a lie produced the agreement, and asks whether the person had capacity to give it.¹² Only after a confinement survives all three steps does the removal question arise, and the cleanest way to see how it works is to hold everything else constant and move one fact at a time.

The first two scenes match on the gunpoint seizure, the absence of legal authority, and the absence of consent, and they differ only in the border, so the border is the fact that moved the answer from false imprisonment to kidnapping. The third scene keeps the border crossing of the first and changes B's agreement, which moves the answer to no offense at all, because valid consent defeats the base offense and kidnapping cannot rest on a base offense that is missing.

Kidnapping also has to be kept apart from its neighbors. It is, historically and by definition, a different crime from false imprisonment, extortion, and robbery,¹⁶ so a detention that accompanies one of those offenses does not become kidnapping on that account. It becomes kidnapping only when the step-four facts are present. On an exam, the usual error is calling every forcible holding a kidnapping. A fact pattern that describes a gun, a locked door, and a frightened victim usually satisfies the first three steps and then tests whether the reader notices that nothing carried the victim out of the country. This section applies the common-law baseline only; the final section of this chapter shows how modern statutes relax the cross-border requirement.