Modern Statutory Departures

The common-law baseline treats kidnapping as false imprisonment plus one aggravating element, the forcible carrying of the victim out of his own country and into another.¹ That definition left a gap, because a person seized at gunpoint and hidden in a house across town faces the same danger as one carried over a border, yet the narrow definition left the domestic abduction in the lesser category of false imprisonment. Legislatures closed the gap by statute, and the common-law crimes in this area have in general been changed by statute.² Federal law shows how complete the shift can be, since federal courts have no jurisdiction to try common-law crimes and every federal crime must rest on a statute of Congress, as the Supreme Court held in United States v. Hudson.³

Widening the offense created a risk of its own, and the subsections below follow that sequence. Statutes first relax the border requirement, courts then limit the relaxed movement element so that kidnapping does not attach to every crime that involves some movement, and statutes finally add degrees and special forms that grade the offense up or down. This section works as a bridge. The Model Penal Code and the detailed statutory tests are taught in other readings, so what follows is an overview of how modern law departs from the baseline, beginning with the movement element.

Relaxed Asportation

Modern statutes do not require that the victim be taken out of the country. Early common law demanded a forcible carrying of the victim to another country, and under modern statutes the carrying away need not be that extensive, although jurisdictions vary on how extensive it must be.⁴ Statutes widen the offense in several recognizable ways. The most common addition is false imprisonment committed with intent to cause the victim to be imprisoned secretly within the state, and some enactments go further and cover the forcible or fraudulent taking of a person from his place of residence without authority of law.⁵ Some jurisdictions let restraint alone suffice, which means that conduct amounting only to the misdemeanor of false imprisonment at common law can qualify as kidnapping without any real relocation of the victim.⁶ The general modern description of the offense, seizing and taking away a person by force or fraud, reflects the same breadth.⁷

The border drops out because it was never what made the abduction dangerous. A victim held in a basement or a remote cabin is cut off from help and subject to the abductor's control whether or not any boundary was crossed, so a statute aimed at that danger has no use for a border. The secrecy addition tracks the concern directly, since it picks out the confinement that removes the victim from anyone who might intervene. Once the border is gone, though, the movement element filters out much less than it did, a consequence the next subsection takes up.

The effect of the change is easiest to see by holding the facts fixed and changing the governing rule, and then holding the rule fixed and changing one fact.

The first box changes only the governing rule, and the answer moves from false imprisonment to kidnapping. The second keeps the statute and removes the intent to imprison secretly, and the answer moves back. Because jurisdictions vary, the statute the problem supplies controls, and a jurisdiction that lets restraint alone suffice would reach the second scene as well. On an exam, the usual error is demanding a border crossing after the stem has supplied a modern statute. A fact pattern that ends with a victim hidden in the same state is usually testing whether the reader applies the statute's version of the movement element in place of the common-law one.

Incidental Movement

Relaxing the movement element creates a problem the common-law definition never had. Rape, robbery, and assault usually involve some movement of the victim, so once almost any movement counts, kidnapping could be superimposed on all of these crimes.¹¹ A charge available on nearly every set of facts would stop marking anything in particular, since a robber who steers a clerk ten feet to a safe would face the penalties meant for a different and graver kind of conduct. It would also hand prosecutors a ready enhancement to attach to ordinary violent crimes. Courts therefore ask for movement or restraint beyond what the underlying crime itself involves, so that the added charge marks conduct that is genuinely more dangerous.

In many states kidnapping is not an offense at all when it is only incidental to another crime.¹² Where a statute does reach the movement, many jurisdictions require the asportation to be substantially greater than what would normally occur as an incident to the underlying crime, a requirement that People v. Levy, a New York decision, illustrates.¹³ The yardstick is therefore the underlying crime itself, and the question becomes how much more than that crime ordinarily involves the defendant actually did.

People v. Adams, a Michigan Court of Appeals decision, shows the limit at work. A prison guard was moved from one portion of a prison to another, and the court held the movement insufficient because it did not significantly increase the danger to which the guard was subjected.¹⁴ The question that decided the case was whether the movement added to the danger the guard already faced. The court also declined to treat the kidnapping statute as a catchall, and it refused to read the statute to reach any detention carried out to obtain an advantage when there is no meaningful movement and no secrecy.¹⁵

Jurisdictions that let restraint suffice face the same problem in a sharper form, because some restraint is inherent in a robbery. North Carolina requires greater restraint or movement than a robbery inherently involves, though not a great deal more, and in State v. Beatty that line separated two robbery victims: pointing a gun at one was not kidnapping, while kicking the other and tying the hands was.¹⁶ The two decisions measure different things. Adams asks whether relocating the victim made the victim's situation more dangerous, which fits a statute built on movement, and Beatty asks whether the restraint exceeded what the robbery itself required, which fits a statute that counts restraint. Both ask for something beyond the ordinary incidents of the underlying crime.

The two scenes share the robber, the weapon, and the victim, and they differ in how far the victim was taken and what that did to the danger, so the extent of the movement is the fact that moved the answer. On an exam, the usual error is treating every forced movement during a crime as kidnapping. A stem that describes a victim marched across a store, a car, or a hallway during a robbery or assault is usually testing whether the reader asks if the movement exceeded what that crime ordinarily involves.

Degrees and Special Forms

Modern statutes also grade kidnapping. At common law the offense was a misdemeanor punished by fine, imprisonment, and pillory, and modern statutes make it a felony.²⁰ Many jurisdictions then recognize degrees, with simple kidnapping carrying no aggravating factor and aggravated kidnapping involving a factor such as a ransom demand or injury to the victim.²¹ The grading follows the harm and the danger: a ransom seizure combines unlawful seizure, secret confinement, and extortion in a single course of conduct, and an injured victim has suffered the harm the law is trying to prevent.

Kidnapping for ransom is regarded as one of the gravest crimes and is not infrequently a capital offense.²² A person is guilty of it by taking part in any one of three elements, unlawful seizure, secret confinement, or extortion of ransom, so a go-between who collects the ransom for the actual abductors is guilty although the go-between never touched the victim.²³ Many jurisdictions also punish kidnapping more severely when the victim is seriously injured or harmed.²⁴

The grading runs downward for one special form. When a parent takes a child in violation of the other parent's custody or visitation rights, many jurisdictions treat the conduct as a lesser form of kidnapping than a stranger's seizure.²⁵ The actor is the child's own parent, and the wrong lies in defeating the other parent's custody or visitation rights. Child-stealing statutes, noted earlier in connection with a child's capacity to consent, punish leading, taking, enticing, or detaining a child under a specified age with intent to keep or conceal the child from a parent or guardian, and the taking often involves no force or fraud at all.²⁶

Federal statutes add forms of their own. The Federal Kidnapping Act makes it a federal felony to take a kidnapped person from one state to another, or in foreign commerce, when the captive is held for ransom or reward or for some other reason, and federal law separately punishes international parental kidnapping.²⁷ The Act presumes that a victim not released within 24 hours has been transported across the relevant line.²⁸ Federal kidnapping liability exists only because Congress wrote these statutes, consistent with the rule that every federal crime rests on a statute.²⁹

The two scenes sit at opposite ends of the grading scale, which is why labels matter less than the identifying factor. On an exam, the usual error is treating every kidnapping as the same grade. Degrees and labels differ by statute, so the sound approach is to find the aggravating factor, such as ransom or serious injury, or the mitigating one, such as a parent acting in violation of a custody order, and then follow the statute the problem supplies.

Relaxed Asportation

Asportation, the carrying away of the victim, is the element that made common-law kidnapping a graver offense than false imprisonment. At common law it meant carrying the victim out of the country, so kidnapping was false imprisonment aggravated by conveying the victim across the border.³³ Modern statutes drop that demand. The carrying away no longer has to be that extensive, although jurisdictions differ on how much movement they require.³⁴ The change follows from what makes a domestic abduction dangerous. A victim driven across town and locked in a basement is as cut off from help, and as fully under the abductor's control, as one carried abroad. A rule keyed to a national border would leave that conduct in false imprisonment, an offense that requires no movement at all.³⁵

Statutes rarely discard the movement idea altogether. They usually replace the border with some other feature that marks a seizure as graver than a plain confinement. The most common addition is false imprisonment committed with intent to cause the victim to be imprisoned secretly within the state, and some enactments reach the forcible or fraudulent taking of a person from his place of residence without authority of law.³⁶ Each substitute tracks the danger the border used to stand in for. Secrecy picks out the confinement that places the victim beyond anyone who might intervene, and the residence provision treats a taking from the home as the aggravating feature in place of distance. Because kidnapping is seizing and taking away a person by force or fraud, the taking need not be violent: a person lured into a car on a false pretext has been carried away as surely as one forced in.³⁷

The statutes differ in how far they loosen the element. Some jurisdictions let restraint alone suffice for kidnapping, so that conduct which was only the misdemeanor of false imprisonment at common law can be kidnapping with no relocation of the victim.³⁸ Others stop short of that and treat a false imprisonment as kidnapping when it is secret.³⁹ Since the versions vary, the statute a problem supplies sets the movement element, and the work lies in matching the facts to that statute's chosen feature.

The movement element, once relaxed, still operates as a floor. In People v. Adams, the Michigan Court of Appeals declined to treat its kidnapping statute as a catchall. The court refused to read the statute so that any detention carried out to obtain an advantage becomes kidnapping when it involves no meaningful asportation and no secrecy.⁴⁰ Its reasoning came from the offenses' history: kidnapping has been a different crime, historically and definitionally, from false imprisonment, extortion, and robbery.⁴¹ A statute that swallowed those offenses would attach the penalties meant for the graver crime to conduct the lesser crimes already cover. The same logic explains why border-free statutes keep a movement or secrecy feature. Without one, nothing would separate a kidnapping from an ordinary confinement.

The two scenes share a forcible confinement and differ in the feature the statute uses in place of the border. The first has secrecy and the second has neither movement nor secrecy, so that feature moved the answer. A statute that counted restraint alone would reach the second scene too, which is why the first task is to learn what the controlling statute counts. The steps below run that analysis in order.

Exam Analysis Steps

Because the movement element now varies from one statute to the next, the dependable way to apply it is to identify the version in play and test the facts against that version only. The steps are these:

Decide whether the problem calls for the common-law definition, which requires carrying the victim out of the country, or for a modern statute.
If a statute governs, read which feature it uses in place of the border: movement of lesser extent, secret imprisonment within the state, a taking from the victim's residence, or restraint alone.
Look for that feature in the facts, remembering that fraud can supply the taking as well as force.
If the facts show only a detention with no meaningful movement and no secrecy, ask whether the statute counts restraint alone, and if it does not, treat the conduct as false imprisonment.

The recurring error on an exam is requiring a trip out of the country after the stem has supplied a modern statute. A fact pattern in which the victim ends up hidden in the same state is usually testing whether the reader applies the statute's own movement or secrecy feature, and a fact pattern with a bare detention is usually testing whether the reader recognizes that something beyond confinement is still required.

Incidental Movement

Once a statute stops requiring that the victim be carried out of the country, a new difficulty appears, because nearly every violent crime involves some movement or restraint of the victim. A robber orders the cashier toward the safe, an assailant drags the victim a few steps out of sight, and a rapist takes the victim to a more secluded place. Read literally, a relaxed asportation element (the carrying-away requirement) would let kidnapping be superimposed upon all of these crimes.⁴⁵ Courts and legislatures answer that problem with a limit: many states do not treat conduct as kidnapping when the movement or restraint is only incidental to another crime.⁴⁶

The limit exists to protect the grading of offenses. Robbery, rape, and assault each carry a penalty that already reflects the force and fear ordinarily accompanying them, while kidnapping is the graver offense, a felony today and, in its ransom form, not infrequently a capital one.⁴⁷ If any forced step taken during a robbery supplied the movement element, a prosecutor could attach the heavier charge to nearly every violent crime, and the legislature's distinctions among the offenses would disappear. To prevent that result, many jurisdictions require the asportation to be substantially greater than the movement that would normally occur as an incident of the underlying crime.⁴⁸ The added charge then marks conduct that is more dangerous than the other crime alone, which is the conduct a separate and heavier offense is meant to punish.

The clearest illustration of a movement-based limit comes from People v. Adams, where the Michigan Court of Appeals held that carrying a prison guard from one portion of a prison to another was not sufficient asportation, because the movement did not significantly increase the danger to which the guard was subjected.⁴⁹ Danger is a sensible yardstick for a statute built on carrying away. Relocation matters when it takes the victim farther from help or deeper under the captor's control, and a move within the same building may do neither. The court also grounded its reasoning in history: kidnapping has been a different crime, historically and definitionally, from false imprisonment, extortion, and robbery, and the court refused to treat its statute as a catchall that would attach kidnapping penalties to any detention aimed at gaining an advantage when no meaningful asportation and no secrecy were present.⁵⁰

Jurisdictions that let restraint alone suffice for kidnapping face the same problem in sharper form, because some restraint is inherent in a robbery: every victim ordered to hand over cash is held in place by the threat. Such jurisdictions therefore have an even harder job of separating the restraint inherent in a robbery from the additional offense of kidnapping.⁵¹ North Carolina's answer is to require greater restraint or movement than the robbery inherently involves, though not a great deal greater.⁵² Applying that approach in State v. Beatty, the North Carolina Supreme Court held that pointing a gun at one robbery victim was not kidnapping, while kicking another victim and tying the victim's hands was.⁵³ The gun-pointing did only what the robbery already required, which was to hold the victim in place while the property was taken. The kicking and the binding added confinement that the taking did not need.

The two decisions apply different yardsticks because the statutes behind them count different things. Adams asks whether relocating the victim changed the victim's danger, which suits a statute resting on movement, whereas Beatty compares the restraint used with the restraint the robbery itself required, which suits a statute that counts restraint. Other formulations exist as well, and the substantially-greater-than-incidental standard is associated with People v. Levy in New York.⁵⁴ Because jurisdictions vary, no single national test governs, but each formulation demands a surplus of movement, danger, or restraint over what the other crime ordinarily brings with it.

The two scenes share the gunman, the store, and the owner, and they differ in whether the restraint exceeded what the theft itself needed, so the surplus restraint is the fact that moved the answer. Because that comparison is the whole analysis, it is best run as a short sequence.

Exam Analysis Steps

Because the limit measures the facts against the underlying crime, the dependable way to apply it is to identify that crime first and then look for what the facts add. The steps are these:

Identify the other crime being committed, such as robbery, rape, or assault, and note the movement or restraint it ordinarily involves.
Identify what the controlling jurisdiction counts toward kidnapping, whether movement of greater extent, a significant increase in danger, or restraint beyond what the other crime inherently requires.
Compare the movement or restraint in the facts with that baseline, asking whether it did only what the underlying crime required or went substantially beyond it.
Add kidnapping only if a surplus appears, and otherwise treat the movement or restraint as part of the underlying crime.

The error that costs the most points is charging kidnapping whenever a victim was moved or held during another crime. A stem in which a robber walks a clerk to the safe, or holds a victim at gunpoint during a theft, usually tests whether the reader asks what the underlying crime ordinarily involves before reaching for the heavier charge. A stem in which the victim is driven away, bound, or kicked while being held usually supplies the surplus that the added charge requires.

Degrees and Special Forms

Modern statutes do not treat every kidnapping as a single offense. They grade the crime by the harm and culpability added to the basic seizure, so the same unlawful taking can land at different levels depending on what accompanies it. A kidnapping with no added feature is called simple kidnapping, and one accompanied by a demand for ransom or by injury to the victim is called aggravated kidnapping.⁵⁸ This section names the forms and says which direction each pushes the grade, because the detailed statutory treatment belongs to other readings.

Ransom and injury raise the grade. At common law kidnapping was a misdemeanor punished by fine, imprisonment, and pillory, but modern statutes make it a felony, and kidnapping for ransom is regarded as one of the gravest crimes, not infrequently made a capital offense.⁵⁹ A person is guilty of kidnapping for ransom by taking part in the unlawful seizure, the secret confinement, or the extortion of the ransom, which means a go-between who collects the money for the abductors is liable along with the abductors themselves.⁶⁰ Some statutes extend the same treatment to kidnapping for extortion or other gain, and many jurisdictions punish kidnapping more severely when the victim is seriously injured.⁶¹ The reason each factor raises the grade follows from what it adds to the seizure. Ransom attaches an extortion to the confinement and turns the victim into the lever for the demand, while injury attaches physical harm to the loss of liberty. Each is a second wrong layered on the first, so the heavier penalty answers more than a bare confinement would.

Parental kidnapping pulls the grade in the other direction. This form is the taking of a child by one parent in violation of the other parent's custody or visitation rights, and it is usually treated as a lesser form of kidnapping than a stranger's abduction.⁶² The taker in such a case is a parent caught up in a dispute over who should have the child, which differs from a stranger who seizes someone to profit from the captivity. Without a ransom demand or harm to the child, nothing in the conduct supplies the added wrong that raises the grade of the other forms.

Both scenes involve a taking without legal authority, and they differ in what the taking adds. The first joins an extortion and a secret confinement to the seizure, and the second involves a custody dispute with no ransom and no harm, so the added wrong is the fact that moved the grade. On an exam the usual error is grading a parent's custody-order violation as heavily as a ransom abduction, and the correction is to ask first whether ransom or injury is present and then whether the taker is a parent acting in a custody dispute.

Two related enactments sit outside the common-law test and appear here only as pointers. The child-stealing statutes penalize anyone who leads, takes, entices, or detains a child under a specified age with intent to keep or conceal the child from a parent, guardian, or other person with lawful care or control, and the age varies from state to state, running to 12, 14, or 16 or covering any minor child.⁶⁵ The federal kidnapping statute makes it a felony to take a kidnapped person across state lines or in foreign commerce when the captive was held for ransom or reward or otherwise, and federal law separately punishes international parental kidnapping.⁶⁶ Because both are statutory additions to the common-law baseline, a problem built on the common-law definition does not require their details.