Traditional Kidnapping Definition

The common law defined kidnapping in a single sentence. It was a misdemeanor consisting of forcibly abducting or carrying away a person from his own country and transporting him into another country.¹ Read slowly, that sentence has three working pieces. The first is a forcible abduction, which means taking the victim against his will by force. The second is the removal of the victim out of his own country and into another. The third is the classification of the whole offense as a misdemeanor, which was the grade the common law gave it. The subsections below take each piece in turn, so the job here is to see the definition whole and to see why its parts fit together as they do.

The definition has this shape because kidnapping was built on top of a simpler offense. Common-law kidnapping was false imprisonment aggravated by conveying the victim out of the country.² False imprisonment already covered compelling a person, by an unlawful use or show of force, to stay where he was or to go somewhere he did not wish to go.³ The forcible seizure is therefore the base, and the kidnapping definition adds exactly one aggravating fact, which is the crossing of a border. Because that crossing is the only thing the greater offense adds, an ordinary seizure and confinement inside one country remained false imprisonment. Defining the greater crime by the single fact that sets it apart from the lesser one keeps the two offenses distinct. A charge of kidnapping then tells a court something more than a charge of false imprisonment would.

Courts have continued to treat the two crimes as separate. In People v. Adams, a Michigan appellate court described the common-law offenses, calling kidnapping aggravated false imprisonment and a misdemeanor made up of forcibly abducting a person from his own country and sending him into another. The court added that statutes have, in general, changed these crimes.⁴ The same court insisted that kidnapping is historically and definitionally a different crime from false imprisonment, extortion, or robbery, and it declined to treat the kidnapping statute as a catchall that raises the penalty for any detention carried out to gain some advantage.⁵ That caution carries over to the common-law definition, which is much narrower than the everyday meaning of the word. Modern statutes do reach further, for example by covering false imprisonment aimed at holding the victim secretly within the state, but that departure belongs to a later section of this chapter.⁶

The third step labels the grade of the offense, and the first two are the facts the prosecution has to establish. That difference explains why the second step does most of the sorting in practice: nearly every kidnapping fact pattern begins with a forcible seizure, so the open question is whether the victim was carried across a border.

The two scenes differ only in the destination, and that single variable moves the answer from one offense to the other. The trap on an exam is to see a violent seizure and a locked room and reach for the label kidnapping, when seizure and confinement inside one country describes the base offense of false imprisonment. A court applying the traditional definition asks for the border crossing before it uses the word.

Forcible Abduction

The first piece of the common-law definition is a forcible abduction. The actor must abduct or carry the victim away by force, which means taking the victim against his or her will.⁹ To abduct is to lead or take a person away, and the force is what overcomes the person's will so that the taking happens whether or not the person agrees. The victim may be any person, because the common-law offense reached the abduction of a man, woman, or child alike.¹⁰ Neither age nor sex limits who can be abducted. The analysis therefore begins with what was done to the victim and not with who the victim was.

The force requirement exists because force is what makes a taking an abduction rather than a trip. Even in its narrow common-law form, kidnapping invaded the victim's liberty, meaning the freedom to decide where to be. A competent adult who accepts an invitation to travel has exercised that freedom, so nothing has been taken from the person. Requiring a forcible taking confines the offense to cases where the victim's will was overcome. It also keeps ordinary journeys, even long ones that cross a border, outside the criminal law, since the border crossing matters only when the victim was taken against his or her will.

The two scenes share a destination and differ only in whether B's will was overcome. That single variable decides the first piece of the definition, so a fact pattern about a voluntary traveler never reaches the question of the border.

The word "forcibly" in the traditional definition captures force and does not itself capture taking by trickery. Modern law reaches further, since kidnapping can be accomplished by fraud as well as by force. An example is a man who induces a girl into his car on the pretext of babysitting while intending to take her elsewhere for sexual activity.¹² That extension belongs to the modern departures near the end of this chapter. The consent rules on coercion, deception, and incapacity, taken up later, also explain when apparent willingness is not real willingness. The trap on a common-law question is to treat a person who was merely tricked into going as forcibly abducted, when the traditional element asks about force.

Removal From the Country

The second piece of the common-law definition is the removal. Beyond a forcible abduction, the actor must carry the victim from his own country and transport him into another country.¹⁴ That wording has a starting point and a destination, and both are countries: the victim begins in his own and ends in a different one. The carrying away of a victim is called asportation, and the early common law demanded a forcible asportation all the way to another country.¹⁵ The question this element asks is therefore where the victim began and where the victim ended up, measured against a national border.

This element does the sorting between the two offenses, because it is the only thing that lifts kidnapping above false imprisonment. Common-law kidnapping amounted to false imprisonment aggravated by moving the victim to another country.¹⁶ The force and the confinement already belong to the lesser offense, so the border crossing is the one fact left to distinguish the greater. The reason that fact carries so much weight is practical. A victim held inside his own country remains within reach of the family, neighbors, and local officers who might discover the confinement and end it. A victim carried abroad leaves all of that behind, which makes the confinement much harder to end and the wrong correspondingly graver. Tying the greater offense to the crossing marks exactly the fact that produces the added harm.

The release at the end of that scene does not change the analysis, because the element looks to the removal, and the removal occurred when B was transported into the foreign country. What mattered was the border, and nothing about how the episode ended.

The two scenes show that movement by itself does not satisfy the element. A short forced trip over a border meets the definition, while a long forced journey wholly inside one country does not, since the definition measures the movement by the countries it connects. The error that costs points here is counting miles when the question is whether a border was crossed. A forcible seizure followed by a hundred-mile drive to a remote cabin in the same country has the violence and the confinement that make the word kidnapping come to mind, yet it remains the base offense of false imprisonment.

This is the common-law rule, and modern statutes ask for less. Under them the asportation need not be as extensive as a trip out of the country, and jurisdictions differ on how much movement they require.¹⁹ A statute that reaches movement within a single state therefore applies a looser test than the one taught here. A later section of this chapter takes up that relaxed version, and for now the common-law requirement stays fixed at the border.

Misdemeanor Grade

The third piece of the common-law definition is its grade, and the definition states it outright: common-law kidnapping was a misdemeanor.²¹ A misdemeanor sits below a felony in seriousness, and the common-law punishment for this one was a fine, imprisonment, and the pillory, a wooden frame that locked the offender's head and hands in place so that the community could watch.²² That grade surprises a reader who knows kidnapping today as one of the gravest offenses in the criminal code. The surprise needs resolving at the outset, because a student who carries the modern grade back into a common-law analysis will describe the baseline offense as something it never was.

The grade is consistent with the structure laid out earlier in this chapter. Kidnapping was false imprisonment plus one aggravating fact, and false imprisonment was also a common-law misdemeanor, so the aggravated offense stayed in the same class as the base offense beneath it.²³ The aggravating fact changed the name and the definition of the crime, but the common law did not lift it into the felonies. The offense was also narrow, since it required a forcible removal out of the country, and that definition describes far less conduct than the everyday word kidnapping now covers.²⁴ A modest grade attached to a narrow offense gives the reader a fixed baseline against which the modern changes can be measured.

Modern statutes depart from that baseline in both the definition and the grade. These common-law crimes have, in general, been changed by statute.²⁵ Kidnapping is now generally a felony, and the special form known as kidnapping for ransom is regarded as one of the gravest crimes, not infrequently made a capital offense, which means one for which death is an authorized punishment.²⁶ Many jurisdictions also punish kidnapping more severely when the victim is seriously injured.²⁷ The harsher grade tracks the broader reach of the modern offense: statutes add conduct such as imprisoning the victim secretly within the state, and they add aggravating features such as ransom and injury, each of which makes the wrong more dangerous than the bare border-crossing seizure the common law punished.²⁸ The change came through legislation, so a question that asks about common law calls for the older grade.

The two scenes differ in the body of law that governs, and that variable decides the grade. Under the pure common-law definition the offense is a misdemeanor, while under a modern ransom statute the same word covers a felony that may carry the gravest penalty the jurisdiction allows. On an exam, the trap is importing the modern felony grade into a question that asks what the offense was at common law. The phrase at common law, or a description of a jurisdiction applying the traditional definition, fixes the grade as a misdemeanor, while a statutory fact pattern built around ransom or serious injury points toward the felony treatment.