Kidnapping is a broad term that involves numerous different crimes. The penalties for kidnapping can effect the rest of your life, so it is important to understand what you are facing when charged with kidnapping.
What are the different types of kidnapping?
There are three. The first two are defined by NRS 200.310:
“1. A person who willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away a person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person for ransom, or reward, or for the purpose of committing sexual assault, extortion or robbery upon or from the person, or for the purpose of killing the person or inflicting substantial bodily harm upon the person, or to exact from relatives, friends, or any other person any money or valuable thing for the return or disposition of the kidnapped person, and a person who leads, takes entices, or carries away or detains any minor with the intent to keep, imprison, or confine the minor from his or her parents, guardians, or any other person having lawful custody of the minor, or with the intent to hold the minor to unlawful service, or perpetrate upon the person of the minor any lawful act is guilty of kidnapping in the first degree which is a category A felony.
2. A person who willfully and without authority of law seizes, inveigles, takes, carries away or kidnaps another person with the intent to keep the person secretly imprisoned within the State, or for the purpose of conveying the person out of the State without authority of law, or in any manner held to service or detained against the person’s will, is guilty of kidnapping in the second degree which is a category B felony.”
The third type of kidnapping is known as “Child custody kidnapping,” and is defined in NRS 200.359 as:
“1. A person having a limited right of custody to a child by operation of law or pursuant to an order, judgment or decree of any court, including a judgment or decree which grants another person rights to custody or visitation of the child, or any parent having no right of custody to the child, who:
- In violation of an order, judgment or decree of any court willfully detains, conceals or removes the child from a parent, guardian or other person having lawful custody or a right of visitation of the child; or
- In the case of an order, judgement or decree of any court that does not specify when the right to physical custody or visitation is to be exercised, removes the child from the jurisdiction of the court without the consent of either the court or all persons who have the right to custody or visitation,
- Is guilty of a category D felony and shall be punished as provided in NRS 193.190.
- A parent who has legal custody of a child pursuant to NRS 125.465 shall not willfully conceal or remove the child from the custody of the other parent with the specific intent to deprive the other parent of the parent and child relationship. A person who violates this subsection shall be punished as provided in subsection 1.
- If the mother of a child has primary physical custody pursuant to subsection 2 of NRS 126.031, the father of the child shall not willfully conceal or remove the child from the physical custody of the mother. If the father of a child has primary custody pursuant to subsection 2 of NRS 126.031, the mother of the child shall not willfully conceal or remove the child from the physical custody of the father. A person who violates this subsection shall be punished as provided in subsection 1.
- Before an arrest warrant may be issued for a violation of this section, the court must find that:
- This is the home state of the child, as defined in NRS 125A.085; and
- There is cause to believe that the entry of a court order in a civil proceeding brought pursuant to Chapter 125, 125A, or 125C or NRS will not be effective to enforce the rights of the parties and would not be in the best interest of the child.
- Upon conviction for a violation of this section, the court shall order the defendant to pay restitution for any expenses incurred in locating or recovering the child.
- The prosecuting attorney may recommend to the judge that the defendant be sentenced as for a misdemeanor and the judge may impose such a sentence if the judge finds that:
- The defendant has no prior conviction for this offense and the child has suffered no substantial harm as a result of the offense; or
- The interests of justice require that the defendant be punished as for a misdemeanor
- A person who aids or abets any other person to violate this section shall be punished as provided in subsection 1.
- This section does not apply to a person who detains, conceals or removes a child to protect the child from imminent danger of abuse or neglect or to protect himself or herself from imminent physical harm, and reported the detention, concealment or removal to a law enforcement agency or an agency which provides child welfare services within 24 hours after detaining, concealing or removing the child, or as soon as the circumstances allowed. As used in this subsection:
- “Abuse or neglect” has the meaning ascribed to it in paragraph (a) of subsection 3 of NRS 200.508.
- “Agency which provides child welfare services” has the meaning ascribed to it in NRS 432B.030.”
That is a lot of legal speak for which basically means that the three types of kidnapping are: Kidnapping in the first degree, kidnapping in the second degree, and child custody kidnapping.
What is the difference between the three different types of kidnapping?
As with any other crime that is separated by degrees, kidnapping in the first degree is a more serious offense than kidnapping in the second degree. Both are seen as more serious offenses than child custody kidnapping.
Then what is First Degree Kidnapping?
There are two different situations in which first degree kidnapping applies.
- When you detain, move, or restrain someone through the use of force or fraud, for the purposes of:
- Holding the person for ransom;
- Sexual Assault;
- Extortion (either from the victim, or from their friends or family);
- If you take or lure a child away for the purposes of keeping the child from his or her family, or to enslave or engage in an illegal act with the child.
You may notice that in either of the two scenarios, there are three elements to First Degree Kidnapping: 1.) Detainment, Restraint, or movement; 2) through force or fraud; and 3) the purpose of the detainment, restraint or movement.
What do you mean by “detainment, restraint, or movement”?
Movement is the most obvious, and also most important aspect of this element. The victim must be moved from one place to another in order for kidnapping to apply. A person cannot be kidnapped unless they are moved from one place to another.
Please Note: It is important to understand, however, that the movement does not need to be very far. For example, if a bank robber were to move all of the bank’s patrons from the front of the building into a back room, that would be enough to satisfy the “movement” element.
Restraint is also an obvious part of the element. If someone has been kidnapped, it is highly likely that they will have to be restrained so that they do not get away. The restraint does not have to be entirely physical, though. Using the threat of violence or harm to keep someone in place is still a form of restraint and will satisfy the restraint element of First Degree Kidnapping.
As to detainment, you may have noticed that the text of the statute reads: “with the intent to hold or detain, or who holds or detains” the victim. This essentially means that the victim was moved and restrained with the intent to hold the person wherever they were moved to, or that the victim was held. In other words, in the bank robber example above, the patrons were moved to the back room with the intent that they would be locked in and thus held there until someone let them out.
Please Note: Detainment only requires the intent to hold or detain. If the patrons were able to immediately climb out of the window and get away, the detainment aspect would still have been satisfied because the robbers had intended that they could not leave the room.
Also Note: The reverse is also true, if the robbers had intended that the patrons’ could climb out of a window, and thus not be held, but the window was stuck and the patrons were unable to leave the room, then the detainment aspect would still be satisfied even though the robbers had no intent to hold them.
What about the second element, “by force or fraud”?
This is simply an easy way of explaining the long list of words at the beginning of NRS 200.310 (willfully seizes…). It means that if you physically move the victim from one location to another, then you have satisfied the force aspect of the second element. If, on the other hand, rather than force, you managed to trick or persuade the victim to move from one location to another then you have satisfied the fraud aspect of the second element.
Please Note: the threat of physical force, or of imminent harm, is treated just like the actual use of physical force and as such would satisfy the force aspect of the second element.
What about the third element?
This is the element that separates First Degree Kidnapping from Second Degree Kidnapping. First Degree Kidnapping, then, applies when the kidnapping was done for the purposes of:
- Holding the person for ransom;
- Sexual Assault;
- Extortion (either from the victim, or from their friends or family);
Or, in the case of the kidnapping of a child, for the purposes of:
- Keeping the child from his or her family;
- To enslave the child; or
- Engage in an illegal act with the child.
If none of the above reasons for the kidnapping applies, and there is any other reason for the kidnapping, then First Degree Kidnapping cannot be charged.
What are the penalties for First Degree Kidnapping?
First Degree Kidnapping is a category A felony. The punishment, however, is determined by whether or not the victim sustained substantial bodily harm.
If the victim sustained substantial bodily harm, then you may be facing:
- Life in prison without the possibility of parole; or
- Life in prison with the possibility of parole after a minimum of 15 years has been served; or
- 40 years in prison, with eligibility for parole after a minimum of 15 years has been served.
If the victim sustained no substantial bodily harm, then you will be facing:
- Life in prison with the possibility of parole after a minimum of 5 years has been served; or
- 15 years in prison with the possibility of parole after a minimum of 5 years has been served.
Please Note: Aiding and abetting in a First Degree Kidnapping carries the same penalties as for the person committing the First Degree Kidnapping.
So what is Second Degree Kidnapping?
Stripping away all of the legal speak and redundancy in the statute, Second Degree Kidnapping contains both the first and second elements of First Degree Kidnapping (Detainment, Restraint, or Movement; and By Force or Fraud), but not the third (The purpose for the kidnapping). In other words, any time the first two elements of First Degree Kidnapping are met, but the third is not, then Second Degree Kidnapping applies.
What is the penalty for Second Degree Kidnapping?
Second Degree Kidnapping is a category B felony and carries with it:
- Between 2 and 15 years in a Nevada State Prison; and
- The possibility of fines up to $15,000.00.
Please Note: If you are being charged with aiding and abetting a Second Degree Kidnapping, then you will be facing the same possible prison sentence, but will not be facing any possible fines.
What is Child Custody Kidnapping?
NRS 200.359 is an extremely long statute for a very simple crime: A legal guardian or other relative of a child kidnaps or conceals the child’s whereabouts from someone with court-ordered guardianship over the child.
There are three elements to a Child Custody Kidnapping:
- Nevada must be the child’s home state, as defined in NRS 125A.085;
- There must be a court ordered guardianship;
- The alleged kidnapping relative has taken or concealed the child from the court-ordered legal guardian, or has removed the child from this jurisdiction without permission from the court or the child’s legal guardian.
Why does Nevada have to be the child’s home state?
Essentially, the Nevada Court will not issue an order relating to a child who resides in another state because the Court has no jurisdiction over that child. Moreover, since Nevada Family Court cannot issue orders relating to families residing in another state, if a child living in another state is the victim of a child custody kidnapping, then the violation is one of the other state’s order, meaning that the crime officially took place in another state.
As an example, assume Herbert and Wendy get a divorce in California, and the California Court issues a guardian ship order relating to their daughter, Denise. Even if Herbert then kidnaps Denise while they are all in Nevada, the crime will not be a violation of Nevada law, but rather of the California Court order. Since Denise is a resident of California, and the crime is a violation of a California Court order, there is no reason for Nevada to require that Herbert, Wendy, or Denise appear in a Nevada Court to determine the outcome of Herbert’s conduct.
Why does there have to be Court Ordered Guardianship?
Nevada has a presumption that parents share joint custody of their children. As a result, the law presumes that each parent has equal right to be in custody of the children. Consequently, the court cannot be compelled to force one parent to give up custody of the children.
As an example, assume Herbert and Wendy live in Las Vegas and have one daughter, Denise. They separate, though do not divorce, and Herbert takes Denise to live with him. If Herbert then refuses to allow Wendy to see Denise, the Court cannot force Herbert to give up his right to custody over Denise. This may seem illogical because the Court, by refusing to help Wendy, is essentially refusing to enforce her right to custody over Denise. Unfortunately, that is not how the court looks at this type of situation. Because both parents have equal, and full, right to custody of Denise, it is legally impossible to “kidnap” her.
What does the third element mean?
Assuming that the first two elements have been met, and the child is both a resident and subject to court ordered guardianship, then any relative who intentionally violates the court ordered guardianship by refusing custody to the court ordered guardian is guilty of child custody kidnapping.
Likewise, if you are not a child’s legal guardian and you choose to take that child out-of-state without permission from either the Court or the child’s legal guardian, then you are interfering with court ordered custodial rights.
Please Note: Being late to a drop-off from one parent to the other is not a “refusal of custodial rights.” Attempting to press charges for custodial kidnapping because your co-parent was late to a drop off will only anger the Courts.
What is the penalty for Child Custody Kidnapping?
Generally speaking, Child Custody Kidnapping is a category D felony and carries with it
- Between 1 and 4 years in a Nevada State Prison; and
- A possible fine up to $5,000.00
However, the prosecutor has the discretion to recommend that the alleged kidnapper only be convicted of a misdemeanor. If the alleged kidnapper has no prior conviction for this offense, and the child suffered no substantial harm, or else if the “interest of justice” requires a lesser sentence, then the judge has the choice to lower the charge to a misdemeanor, which carries with it:
- Up to 6 months in jail; and/or
- Possible fines up to $1,000.00.
Are there any defenses?
As with any crime, there are possible defenses that may apply:
- Consent – You cannot be convicted of kidnapping someone who has consented to going with you so long as
- The person is over 18; and
- Their consent was not the result of duress, threats, or fraud.
- No Intent – As you may have noticed above, kidnapping requires an intent to actually kidnap the person. For example, if someone snuck into your car when you weren’t looking, and you then drove away with them hiding there, you could not be convicted of kidnapping because you had no intent to take that person anywhere. If the prosecutor cannot prove that you intended to kidnap the person, then the charges against you should be dropped or dismissed.
- No Movement – If the prosecutor cannot prove that the victim was ever moved from one location to another, but can show that the victim was restrained or detained, by force or fraud, then kidnapping does not apply and the charges should be lowered to the lesser offense of “false imprisonment.”
What should I do if I’ve been charged with Kidnapping?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.