Steve Novak: Criminal Defense Lawyer Lindon Utah

If you have been charged with kidnapping, you first course of action should be to get in touch with an experienced Lindon Utah criminal defense lawyer. If convicted you will have to serve a prison term.

A kidnapping occurs when the defendant either secretly confines the victim against his will or transports the victim from one place to another by force, threat of force or deceit with the intent to secretly confine the victim against his will. The essential elements of proof in a kidnapping case focus upon the defendant’s knowledge and intent and the secret and nonconsensual nature of the victim’s abduction and/or restraint.

Knowledge and Intent

The defendant in a kidnapping case must act with knowledge that his restraint or abduction of the victim is unlawful. This means that the defendant must act with a conscious awareness that his conduct is unlawful and determine to proceed with the conduct despite this awareness. As in other criminal cases, proof of the defendant’s knowledge and intent may be based upon circumstantial evidence. Typically, the circumstantial evidence of knowledge and intent in kidnapping cases involves consideration of several factors including the presence or absence of a preconceived unlawful plan by the defendant, the nature and duration of the restraint or abduction and the defendant’s own belief as to the nature of his conduct. For example, if the defendant argues that he believed that the victim consented to the restraint, then that belief is a factor to be considered when evaluating the defendant’s knowledge and intent concerning the unlawful nature of the restraint. Ultimately, the judge or jury will determine the issues of knowledge and intent by carefully considering all of the factual circumstances, including the defendant’s credibility on the issue of consent.

Abduction or Restraint and Secret Confinement

The act of kidnapping may be accomplished by either restraining the victim at a particular location (e.g., the victim’s own home or office) or by abducting and transporting the victim to another location for the purpose of secret confinement. As a practical matter, the element of abducting and transporting the victim to another location can be demonstrated by very little physical movement. For example, forcing the victim to walk half a block to a vacant apartment might be considered “abducting and transporting” the victim from one place to another. Further, although the confinement must be secret, it can take place in an outdoor location or in a vehicle, as long as the victim is somehow shielded from the public and thereby unable to seek help.

Against the Victim’s Will

The abduction or restraint element of kidnapping must occur without the consent of the victim. The victim’s lack of consent may be demonstrated by direct or circumstantial evidence. If the victim is able to testify and denies that she consented to the restraint or abduction, then that is direct evidence of lack of consent. Beyond that, the lack of consent must be demonstrated by circumstantial evidence. Use of a weapon, threats or actual physical force by the defendant before or during the abduction or restraint provides some evidence of the victim’s lack of consent. Lack of consent may also be demonstrated in instances when the victim is induced by fraud or somehow rendered helpless in order to effectuate the abduction or restraint.

For example, if the defendant directly or indirectly administers a drug to render the victim unconscious so as to more easily abduct and transport the victim to a secret location, the abduction will be considered against the victim’s will since the defendant is inducing and taking advantage of the victim’s helpless condition. The age of the victim may also affect the lack of consent. Some state statutes contain provisions establishing a presumption that children under a certain age lack the necessary maturity to give knowing consent. Children are thus deemed incapable of giving consent, without regard to whether they may have actually given consent. This type of statutory provision makes it easier for a prosecutor to prove that children have been abducted against their will in instances when the children are enticed by strangers and appear to voluntarily accompany their abductors.

Kidnapping as a Separate Offense

An issue that often arises in kidnapping cases is whether the act of kidnapping can be separated from any underlying criminal conduct that may have been committed as part of the kidnapping. This question arises because some crimes by their very nature require that the victim be unlawfully detained for a period of time. Therefore, to charge the crime of kidnapping, the act of detention must be clear and distinct from the underlying offense. If the detention is an integral part of the underlying offense, then it merges with that crime and may not be charged as a separate offense.

Child Abduction Statutes

One of the tragic side effects of broken families is child custody battles. Occasionally, during one of these custody disputes, a noncustodial parent, without proper legal authority, abducts a child from the custodial parent. With the rise in parental abductions, it became clear that kidnapping statutes were inadequate to address this problem for several reasons. First, although the abducting parent may in fact have been acting without proper legal authority when taking the child, the parent’s knowledge and intent (essential elements for the crime of kidnapping) are, at best, difficult to prove. Most abducting parents believe they are acting in the best interests of their children and do not intend to harm them. Another difficulty involves the secrecy of the confinement. Although the custodial parent and the authorities may be unaware of the location of the child, the abducting parent may indeed be living openly with the child in another jurisdiction.

Syndrome Defenses

In some cases, a defendant charged with a criminal offense will offer evidence of a particular syndrome as a means for explaining conduct at the time of the offense. One of the more popular syndrome defenses is the battered woman’s syndrome. Usually, in these cases, the battered woman, after a period of serious emotional and/or physical abuse, strikes out and kills her abuser. Self-defense is generally not an option in such cases because the killing often takes place when there is no threat of an imminent attack. Yet, the battered woman is indeed striking out against her abuser and the years of abuse. If she is prevented from using a defense of self-defense because there was no imminent unlawful attack, then her conduct looks very much like a premeditated, deliberate and intentional killing, with very little in the way of excuse or justification. In an effort to offer an explanation for her conduct and to place the judge or jury in her shoes at the time of the offense, the defendant may present evidence of the battered woman’s syndrome. Offering evidence of this syndrome helps answer the question that inevitably arises in these cases: “Why didn’t she simply leave the situation rather than killing her abuser?”

The battered woman’s syndrome allows the defendant to introduce evidence that battered women often feel emotionally and financially trapped by their abusive situations and are in constant fear that their abusers will violently attack with little or no advance warning. Thus, the syndrome evidence is offered to explain why the defendant decided to act when she did and how she did. In that sense, the battered woman’s syndrome is not presented as a defense to the crime in the strict sense. Instead, it is offered as an explanation for why the defendant may have been thinking and acting as she did at the time of the offense. From the defense perspective, it is hoped that this evidence will engender compassion from the judge or jury when deciding the defendant’s fate and will ultimately result in a reduced punishment.

Another example of syndrome evidence is the rape trauma syndrome. The government, during a rape prosecution, may offer evidence to help explain why the rape victim may not have acted as expected after the rape incident occurred. In some instances, a rape victim does not report the crime immediately and may even react calmly after the incident. The rape trauma syndrome helps the judge or jury to understand the victim’s conduct by explaining that some victims may be under such severe shock that they may be physically and emotionally incapable of confronting the circumstances of the rape. The rape trauma syndrome explains that although rape victims may act in a manner that appears outwardly calm, they are in fact suffering from the severe trauma of rape. Of course, the court must take special care to insure that rape trauma syndrome evidence is not used to prove that, in fact, a rape occurred. Instead, the evidence should be limited to explaining why the victim may not have behaved as “expected” in light of the charges being made against the defendant.

Another popular example of syndrome evidence is the “Vietnam veteran syndrome,” which is sometimes referred to as post-traumatic stress disorder (PTSD). In these cases, the defendant offers specific evidence to demonstrate how his traumatic combat experiences have affected his ability to cope with and respond appropriately to everyday noncombat circumstances. Again, a defendant offering this type of evidence is attempting to place the judge or jury in his shoes to help them understand his peculiar perspective at the time of the offense. With that unique understanding, it is hoped that the judge or jury will be somewhat compassionate when determining the appropriate punishment for the offense committed by the defendant.

Mistakes

One of the basic maxims of criminal law is that ignorance of the law is no defense. This means that defendants may not escape criminal liability by claiming that they did not know that their conduct violated the law. The rationale for this is that the law is knowable and citizens should therefore be encouraged to discover the law rather than avoiding knowledge and using ignorance as a defense. There is, however, one notable exception to this general rule.

Ignorance of the law (or mistake of law) may serve as a defense if the defendant sought knowledge or advice from a person or entity with official authority to interpret the law and it is subsequently determined that this official interpretation was incorrect. This qualifies as an exception because the circumstances indicate that the defendant made a good faith effort to discover the law and should not be penalized if it turns out that the advice or information concerning the law was inaccurate.

Entities with official authority to interpret the law include courts, legislatures, administrative agencies and law enforcement authorities.
A defendant who makes a mistake of fact may have a valid defense in some cases if the mistake is reasonable under the circumstances. For example, in a sexual assault case, if the defendant mistakenly believes that the victim consented to sexual intercourse, then the defendant has made a mistake of fact. When the defendant raises this defense at trial, the judge or jury will have to examine all of the facts related to the incident to determine if the defendant’s mistake of fact was reasonable in light of all of the surrounding circumstances. If the mistake as to the victim’s consent was reasonable, then the defendant could not have intended to sexually assault the victim. Thus, a mistake of fact can serve to negate the necessary mental state for the offense.

A defense of mistake of fact may also be valid if it negates the specific intent necessary for a crime. For instance, if the defendant takes property under the mistaken belief that it has been loaned to him by the owner, then he probably cannot be successfully prosecuted for the crime of larceny. Larceny requires a taking and carrying away of the property with the intent to permanently deprive the owner of the property. If the defendant honestly, but mistakenly, believes that the property had been loaned to him, then he cannot have the specific intent to unlawfully and permanently deprive the owner of the property–a necessary element for a larceny conviction. Again, whether the defendant has in fact made an honest mistake will be evaluated by examining all of the surrounding circumstances.

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If you have been charged with kidnapping or any other crime, contact an experienced Lindon Utah criminal defense lawyer. The lawyer can study the facts of your case and advise you on your available defenses.

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