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Interference with Custody

17 February, 2016 - 11:05

Because of a dramatic increase in the abduction of children by their estranged parents and parental interference with child custody and visitation agreements, almost all states have specifically criminalized interference with the custody of children or unlawful visitation. The significant features of these modern offenses are their specific applicability to parents as defendants and various defenses based on the good faith belief that the child would be in danger without the allegedly criminal conduct. Grading of these offenses varies, with some states g rading nonforcible parental interference with custody as a misdemeanor and others as a low-level felony.

Table 10.3 Table 10.3 Comparing Kidnapping and False Imprisonment
Crime Criminal Act Criminal Intent  Harm Circumstance Grading
Kidnapping Confinement plus asportation  Specific or purposely Confinement plus asportation Lack of consent Felony
False imprisonment  Confinement General or knowingly in some jurisdictions Confinement  Lack of consent Gross misdemeanor or low-level felony
 

Figure 10.11 Diagram of Crimes against the Person

KEY TAKEAWAYS

  • The criminal act element required for kidnapping in many jurisdictions is confinement and asportation of the victim. Some states do not require asportation when the kidnapping is for ransom, and others have done away with the asportation requirement altogether.
  • The criminal intent element required for kidnapping in many jurisdictions is the specific intent or purposely to commit the criminal act in order to harm or injure the victim or another, confine or hold the victim in secret, receive a ransom, commit a separate offense, subject the victim to involuntary servitude, or interfere with the purpose of the government or some political function.
  • The harm element required for kidnapping in many jurisdictions is confinement and asportation of the victim.
  • The attendant circumstance element required for kidnapping is lack of victim consent.
  • Kidnapping is generally graded as first degree or aggravated or as second degree or simple. First-degree or aggravated kidnapping is typically a serious felony, while second- degree or simple kidnapping is typically a low-level felony. One factor that could mitigate or reduce grading is the release of the victim unharmed in a safe place. Factors that could aggravate grading are the youth of the victim or the infliction of serious bodily injury.
  • False imprisonment is often a lesser included offense of kidnapping, missing the asportation element, and requiring general intent or knowing commission of the criminal act. False imprisonment is also graded lower than kidnapping as either a gross misdemeanor or a low-level felony.
  • Two potential defenses to kidnapping and false imprisonment are victim consent and a lawful arrest by a law enforcement officer or citizen.
  • Interference with custody statutes specifically include parents as defendants and allow for a good faith defense that a child would suffer injury if not for the allegedly criminal conduct.

EXERCISES

Answer the following questions. Check your answers using the answer key at the end of the chapter.
  1. Coby is in the process of robbing a bank. When a security guard threatens to shoot Coby, he grabs a customer in the bank and holds a knife to her throat. Coby thereafter demands a getaway vehicle and fifty thousand dollars in cash in exchange for the hostage’s release. Has Coby committed kidnapping in this case? Why or why not?
  2. Read Statev. Salaman, 949 A.2d 1092 (2008). In Salaman, the defendant grabbed the victim, pinned her to the stairs for five minutes, punched her in the face, and violently stuck his fingers down her throat. He was thereafter convicted of second-degree kidnapping and appealed, claiming his restraint of the victim was merely incidental to the crime of assault. In Connecticut, the state where the offense occurred, the kidnapping criminal act is restraint with the specific intent to prevent the victim’s liberation. Connecticut also had case precedent holding that restraint that is incidental to the commission of a separate offense is still kidnapping. Did the Supreme Court of Connecticut uphold the defendant’s conviction? The case is available at this link:http://scholar.google.com/scholar_case?case=13933358391504195031&q=kidnapping&hl=en&as_sdt=2,5&as_ylo=2008.
  3. Read Commonwealthv.Rivera, 828 A.2d 1094 (2003). In Rivera, the defendant, who had a court order depriving him of custody, forcibly removed his daughter from her day care and drove around with her in his car, frequently calling and terrorizing the child’s mother. The defendant’s daughter disappeared, and the defendant was later convicted of felony murder, kidnapping, and other offenses. The underlying felony for the felony murder w as kidnapping, and the defendant appealed claiming he could not legally kidnap his own biological child. Did the Superior Court of Pennsylvania affirm the defendant’s felony murder and kidnapping convictions? Why or why not? The case is available at this link:http://scholar.google.com/scholar_case?case=6955582630525573237&q=%22interference+with+the+custody+of+children%22&hl=en&as_sdt=2,5.