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Suppose I steal a car, and there's a baby in the back seat. Did I just kidnap the baby?

feetwet
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moonman239
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    Please tell me you're not typing this from the front seat of a stolen car with twenty police cars behind you. – Richard Jan 20 '21 at 08:30
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    ("Asking for a friend.") – Peter - Reinstate Monica Jan 20 '21 at 10:10
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    @Richard I think this was actually inspired by a recent article about a car thief who stole a car from a parking lot, then drove back to dump the 4 year old who was in the backseat and scold the mother for leaving the kid in the car (https://6abc.com/oregon-car-thief-scolds-mom-for-leaving-her-child-in-car-he-stole/9791931/) – Nzall Jan 20 '21 at 12:43
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    If you bring the child back and berate the parent for irresponsibility then I think it would be hard to convict them of kidnapping. Bonus points if you let the parent know that this level of irresponsibility will lead the child to a life of crime and car stealing. – MonkeyZeus Jan 20 '21 at 13:29
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    If the baby is asleep, it's a kid napping. – David Schwartz Jan 21 '21 at 19:29

5 Answers5

44

In , it appears that the kidnapping statutes do not apply if the act is not "knowing" or if the perpetrator lacks intent.

§ 18-3-301

  1. Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping:

    (a) Forcibly seizes and carries any person from one place to another;  or

    (b) Entices or persuades any person to go from one place to another;  or

    (c) Imprisons or forcibly secretes any person.

§ 18-3-302

  1. Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping.

2.  Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping.

§ 18-3-303

  1.  Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment.

As @ohwilleke pointed out in this answer, this means that as soon as the hypothetical car thief becomes aware that the child is in the car and doesn't then act to return the child to their parents, it becomes second-degree kidnapping. (It's also possible that CO case law has interpreted the statutes differently than I'm interpreting them here, but the plain language seems to require the actual intent to take and/or confine a person illicitly.)

Michael Seifert
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  • I suppose it's possible that someone could be prosecuted under §18-3-304: "[A]ny person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody or care of the child's parents, guardian, or other lawful custodian ... commits a class 5 felony." That section is about custody orders on its face, but I suppose a prosecutor could get creative. – Michael Seifert Jan 19 '21 at 21:39
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    I assume the "knowingly" in 18-3-302.1 protects bus drivers, pilots etc. transporting sleeping or misguided passengers or even people in custody or care who are mistakenly but with good intentions driven to the wrong place. – Peter - Reinstate Monica Jan 20 '21 at 10:13
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    Should point out that said car thief is not "hypothetical". This actually just happened, which is likely what inspired this question. (And according to the report I saw, it's not the first time, can't find that link anymore though...) I think he knew he'd be in a lot more trouble for kidnapping than for auto theft. – Darrel Hoffman Jan 20 '21 at 14:24
  • @Michael Seifert "Possible" is hardly the word. Regardless of knowledge or intent, if someone does this, he will not only be prosecuted for auto theft but for kidnapping. District attorneys are elected, and this is a fine opportunity for the DA to convince the electorate that he is a tough guy. What happens to children always interests people. The legal details hardly matter, nor does an possible :-) eventual dismissal of the charge. – Wastrel Jan 20 '21 at 18:48
  • @Darrel Hoffman Or he just didn't want to leave a child by the roadside. – Matthew Wells Jan 20 '21 at 21:29
  • On a larger scale it would be similar to an airplane pilot or ship's captain "kidnapping" someone who stowed away on a plane/boat ? – Criggie Jan 20 '21 at 21:44
  • @ColinLosey Charged, yes, but if even this guy wasn't convicted (on the kidnapping charge)... https://denver.cbslocal.com/2015/04/29/jury-returns-verdict-for-man-accused-in-series-of-carjackings-75-mile-chase/ – user3067860 Jan 21 '21 at 13:57
  • @user3067860 good point, but remember the prosecution can't appeal if they lose a criminal trial. So we'll never know if the jury got it 'wrong.' –  Jan 21 '21 at 14:18
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    @Criggie That's good reasoning by analogy but I think there are two key differences. (1) it's much more reasonable to think that a captain or pilot wouldn't be aware of a stowaway than to think that the driver of a car wouldn't be aware of a baby in that car. Because 'knowledge' can be constructive, this difference is relevant. (2) being a pilot or boat captain isn't in and of itself bad, or malum in se, whereas driving a stolen car is. You make a good argument that reasonable minds could agree with, though. –  Jan 21 '21 at 15:26
  • It's not clear how you're connecting the scenario where the thief discovers the child in the car to the statutes you quoted. Referring to "second degree kidnapping" implies that § 18-3-302.1 applies specifically. But at the point of discovery the "seizing and carrying" has already been carried out and it was clearly unknowing up to its completion. So where do these statutes create an offense relevant to that discovery? – Will Jan 21 '21 at 17:39
  • @Will: I didn't mean to say that there was an offense before the discovery. Rather, I was saying that if the thief discovered the child in the back of the car, and then continued to drive around while they figured out what to do, then their actions after the discovery might constitute second-degree kidnapping. I've edited this to clarify my meaning. – Michael Seifert Jan 21 '21 at 18:03
  • tl;dr: Not a kidnapping if the kid's napping – Dahn Jan 21 '21 at 18:34
  • @MichaelSeifert I don't think your edit saved properly - I don't see any revisions. As for what the thief does after discovering the child, I'd think that if the ongoing carrying was to return the child straight to their parent this would qualify as "lawful justification" under the statute (otherwise it would apply to anyone who discovered a lost child even without the preceding theft). But I feel like this gets into the weeds of the presumed background case to the question, not what was actually asked. – Will Jan 21 '21 at 23:52
  • What if I realize there's a baby in the car, then I turn around and return the kid to his parents? – moonman239 Jan 22 '21 at 19:50
  • @moonman239 see my comment above. By my reading there's nothing in the quoted statutes that makes an offense either of driving off with the baby unknowingly or of making the return journey knowingly. But to keep this subject from being deemed off-topic you should really add this to your question or ask a new one if you want that answered. – Will Jan 23 '21 at 00:26
21

In some jurisdictions, it would not be kidnapping until the offender knows that the baby was in the car. It would depend on the exact language of the criminal kidnapping statute in that jurisdiction as interpreted by case law.

For example, if the car thief stole the car and then abandoned the car, without ever knowing that the baby was in it, in some jurisdictions, this would not be kidnapping, because the offender would lack the knowledge that the crime was committed.

But, if after stealing the car, the offender then learns that the baby is there, and doesn't immediately take action to return the baby to its parents, even if this as a practical matter means turning himself in for the car theft offense, even those jurisdictions that require knowledge that a person has been kidnapped would make the person guilty of kidnapping.

Subtle differences in statutory language like this often don't necessarily have a lot of rhyme or reason to them in the sense of being considered policy decisions, and depend to a great extent on the statutory drafting style of the original legislators that wrote the criminal statute in question.

ohwilleke
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12

Yes, in

The New South Wales Crimes Act 1900 says:

86 KIDNAPPING

(1) Basic offence A person who takes or detains a person, without the person's consent--

(1) ...

(a1) with the intention of committing a serious indictable offence, or

(b) ...

is liable to imprisonment for 14 years.

Stealing a car is a “serious indictable offence” so this is kidnapping.

Erwin Bolwidt
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Dale M
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8

There are two kindred offences In ; kidnap and child abduction.

Kidnap is contrary to common law and defined by the House of Lords as:

  • the taking or carrying away of one person by another;
  • by force or by fraud;
  • without the consent of the person so taken; and
  • without lawful excuse

Although kidnap is a viable and legitimate charge in the OP's scenario, the statutory offence at s.2 of the Child Abduction Act 1984 is more appropriate in these particular circumstances:

s.2(1) ... a person ... commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen—

(a) so as to remove him from the lawful control of any person having lawful control of the child; or

(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.

(Non-relevant detail redacted for ease of reading)

Here is a real-life example of a successful conviction under this legislation:

Two men who stole a mother’s Range Rover that had her three young children inside have been ... found guilty of child abduction (plus a host of other offences)

feetwet
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    So it is kidnapping in the UK even without knowledge. And child abduction with knowledge even without intent to keep the child abducted. – gnasher729 Jan 20 '21 at 11:32
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    @gnasher729 I'm going to bet that it's harder to not know that there are three young children than it is to not know that there's one baby. – RonJohn Jan 22 '21 at 00:45
1

Yes. This is pretty cut and dry as it has triggered many an amber alert and has been charged as kidnapping when the suspect is arrested.

hszmv
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