Comparing State Statutes

Comparing State Statutes

The purpose clause in § 212.1 is the feature of the Code's kidnapping offense that travels least well to other jurisdictions, so it helps to see how the Code compares with the statutes a student may meet on an exam. Under the Code, a qualifying and unlawful removal or confinement becomes kidnapping only when the actor also acts with one of the listed purposes.¹ Federal courts that compare state law with the Code have said so directly. In United States v. Cervantes-Blanco, the Fifth Circuit recounted its earlier decision in Gonzalez-Ramirez, where the court looked to the Code's definition and explained that “kidnapping does not occur under the Model Penal Code absent one of the specifically enumerated purposes.”² The same opinion noted that a “majority of states have rejected a specified purpose requirement for kidnapping crimes,” and on that ground the court refused to treat a specified purpose as a requirement for a state kidnapping conviction to count as a crime of violence under the sentencing guidelines.³

A statute that drops the purpose requirement still has to keep the offense from swallowing other crimes, and the reason is easy to see from the structure of the offense. Many ordinary crimes involve some restraint: a robber orders a clerk onto the floor, or an assailant holds a victim in place during a beating. If movement or confinement alone made a person a kidnapper, each of those crimes would carry a kidnapping charge as well. The Code answers this problem with its list of purposes, which separates the serious offense from restraint that is incidental to something else. A state without a purpose list must do the same work with other features of the definition, and the Tennessee and New York statutes show two ways of doing it.

Tennessee limits the offense through the character and consequences of the restraint. As the Fifth Circuit summarized the statute, kidnapping there requires a knowing removal or confinement, accomplished by force, threat, or fraud, that interferes substantially with the other person's liberty, and that either exposes the person to a substantial risk of bodily injury or holds the person in a condition of involuntary servitude.⁴ No ransom, felony, or terror purpose appears anywhere in that list. The narrowing comes from the demand for substantial interference with liberty combined with a risk of injury or servitude, and the Gonzalez-Ramirez court regarded the result as at least as restrictive as most state statutes where the victim is a competent adult, since force, threat, or fraud must accompany those added elements.⁵ Even the protected-class track differs in detail. The Tennessee definition of unlawful speaks of a person under thirteen, while the Code speaks of a person under 14, which is a reminder to apply the age line of the statute the problem names.⁶

New York narrows the offense through the actor's intent about the restraint itself rather than through a list of ulterior goals. Its second-degree kidnapping statute makes a person guilty who abducts another, and abduct means to restrain a person with intent to prevent that person's liberation, either by secreting or holding the person in a place where discovery is unlikely, or by using or threatening deadly physical force.⁷ To restrain, in turn, means to restrict a person's movements intentionally and unlawfully so as to interfere substantially with liberty, by moving or confining the person without consent. Without consent covers physical force, intimidation, or deception, and, for a child under sixteen or an incompetent person, any means at all when the custodian has not acquiesced.⁸ The statute therefore does require an intent, but the intent concerns preventing liberation through concealment or deadly force. It is a different thing from the Code's requirement that the actor hold the victim for ransom, to facilitate a felony, to injure or terrorize, or to interfere with government.

Older statutes show a third way of defining the required intent. In Vandiver v. State, an Oklahoma court traced its kidnapping statute from Dakota Territory back to New York and surveyed decisions from New York, Utah, and Alabama that treated an intent to confine the victim secretly as the central intent of such statutes.⁹ The Alabama court described the intent behind the acts as the dominating element of the offense and tied the offense to surreptitious restraint that cuts the victim off from the law's help.¹⁰ Secrecy is a single concealment-based intent, while the Code lists four separate goals, yet both approaches serve the same end of keeping ordinary, incidental restraint out of the serious offense.

The facts stayed fixed in both versions, and the only variable was the statute that governs. The Code's elements did not change when the second statute was applied, because the second statute is a different definition of the offense. That is why the exam question is which statute applies. A problem that names the Model Penal Code makes the listed purpose an element the prosecution must prove, and a problem set in a state with a Tennessee-style or New York-style statute asks for that state's own features instead.

Students lose this issue by importing the Code's purpose requirement into a state statute that has none, and by making the opposite mistake of finding Code kidnapping in a frightening restraint that lacks a listed purpose. The habit that avoids both mistakes is to read the governing statute first and to ask which feature of it limits the offense. Under the Code that feature is the purpose clause, and a restraint without one of the four purposes falls to a lesser offense.