Kidnapping. UCMJ Art. 134
- That the accused seized, confined, inveigled, decoyed, or carried away a certain person;
- That the accused then held such person against that person’s will;
- That the accused did so willfully and wrongfully; and
- That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Theories of Prosecution
- If the misconduct occurred in an area over which the United States exercises exclusive or concurrent jurisdiction, the accused may be charged with violating state penal law as assimilated into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13, which, in turn, is incorporated into military law under the Clause 3 of Article 134.
- If it meets the jurisdictional requirements of the Federal Kidnapping Act, 18 U.S.C. §1201, which is also assimilated into military law by Clause 3 of Article 134, the crime may be prosecuted under that statute.
- Kidnapping may be charged as conduct which is service-discrediting or prejudicial to good order and discipline, in violation of Article 134. United States v. Jeffress , 28 M.J. 409 (C.M.A. 1989).
Nature of Detention
In order to convict accused of kidnapping, there must be more than“incidental” detention.
- Factors to consider in determining whether the detention was incidental include:
- Whether there was confinement or carrying away and holding for a period of time;
- The duration of detention;
- Whether the detention occurred during the commission of a separate offense;
- The character of any separate offense;
- Whether the detention or asportation exceeded that which was inherent in any separate offense and, in the circumstances, showed a voluntary and distinct intention to move/detain the victim beyond that necessary to commit the separate offense at the place where the victim was first encountered; and
- Whether there was any additional risk to victim beyond that inherent in commission of any separate offense. United States v. Barnes , 38 M.J. 72 (C.M.A. 1993) (evidence that victim was locked in room and detained for over two hours against her will during the commission of multiple assaults was more than incidental detention).
- United States v. Seay , 60 M.J. 73 (C.A.A.F. 2004). Accused and accompliceremoved victim from his home, strangled, and pinned victim to ground before stabbing victim to death. These acts of restraint and asportation (removing the victim from his home) occurred prior the actual murder and exceeded the acts inherent to the commission of the murder.
- United States v. Newbold , 45 M.J. 109 (C.A.A.F. 1996) (victim was moved no morethan 12 feet and was detained only long enough to complete the multiple indecent and aggravated assaults; however, movement of the victim limited the possibility of escape, and once the detention began, the subsequent offenses necessarily were “fed” by the increasingly more heinous actions of the assailants; thus, asportation was not merely incidental to other charged offenses, and evidence was sufficient to sustain guilty plea).
- United States v. Jeffress , 28 M.J. 409 (C.M.A. 1989) (detention of victim consisted of moving her some 15 feet; she was moved from traveled area into greater darkness; there was increased risk of harm to the victim; dragging victim away from beaten path was not inherent in offense of forcible sodomy; factually sufficient to sustain a guilty plea to kidnapping).
- United States v. Broussard , 35 M.J. 665 (A.C.M.R. 1992) (accused grabbed his wife from behind, dragged her into the bedroom, bound her arms and legs to furniture, and held her for a sufficient period of time).
- United States v. Caruthers , 37 M.J. 1006 (A.C.M.R. 1993) (accused’s asportation and holding of his wife were more than incidental; accused conceded his wife was seized or held when she was grabbed from behind, gagged, tied and dragged short distance away where she was held for two to three-hour period during commission of sexual assaults).
“Inveigle” means to lure, lead astray, or entice by false representations or other deceitful means. MCM, pt. IV, 92.c.(1).
- United States v. Blocker , 32 M.J. 281 (C.M.A. 1991) (kidnapping conviction affirmed where accused inveigled 17-year-old victim to remain in car when he drove off highway and down dirt hiking path before raping her).
- United States v. Mathai , 34 M.J. 33 (C.M.A. 1992) (NCO accused inveigled victim into his office by stating, “Follow me, Private,” after which he prevented her from leaving the room several times and held her against her will).
The involuntariness of the seizure and detention is the essence of the offense of kidnapping.Once the offense is complete, the duration of the restraint is not germane, except for sentencing purposes. United States v. Bailey , 52 M.J. 786 (A.F. Ct. Crim. App. 1999) (victim did not tell the accused she wanted to go home, and after initially getting out of the accused’s truck and being carried back, she did not try to get out of the truck again; however, a victim is not required to voice lack of consent under the law; once the accused carried the unwilling victim back to his truck, the offense of kidnapping was complete), aff’d, 55 M.J. 38 (C.A.A.F. 2001).
Lesser Included Offenses
Reckless engangerment is not a lesser included offense ofkidnapping. United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009).