Domestic Violence and Kidnapping
Under Penal Section 207 the Code describes kidnapping as “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county.”
Often during the course of committing a domestic violence act the party doing the perpetration moves the victim from place to place without their consent. The underlying crime in addition to the domestic violence issue is that of kidnapping.
It is important to prove kidnapping there must be a “asportation” element that must be proven. That moves some “substantial” movement must be proven to the jury in order to get a conviction. In addition, the Supreme Court has created a standard called the Martinez standard. This standard looks at the totality of the circumstances of the movement. Often the movement to constitute substantial must be more than trivial movement. The important factor is that the movement must not be incidental to the crime as In the act of domestic violence being committed.
These factors in determining whether the Defendant moved the victim are vital to proving kidnapping. If a good Defense attorney can show there was no movement then kidnapping cannot be proven.
In addition to movement to prove kidnapping the District Attorney must prove that there was “force” involved. This is a broad area of interpretation for the Courts to determine whether force actually occurred.
More importantly the Courts do not look at the intent of the Defendant. Kidnapping is not a specific intent crime which means the actions of the Defendant can prove the elements of the crime of kidnapping. Often it is argued that the Defendant did not want to kidnap the victim however, as long as the elements of the crime of kidnapping are met such as proving force and movement intent can be implied.
Often when Domestic violence is committed upon a spouse the perpetrator moves or threatens to move the Victim from the location therefore Kidnapping becomes involved. It is important to hire a lawyer who is familiar with domestic violence and the laws of kidnapping.
Whether a crime was Incidental is also an important factor to determine whether kidnaping occurred. If it can be proven that the movement was not significant and substantial then a lawyer can argue the movement was incidental and defend effectively the charge of kidnaping. Moreover, Courts and Jurys must consider the scope and nature of the movement and the environment in which the movement occurred to substantiate if a kidnaping charge is warranted.
A good defense lawyer may be able to reduce the Kidnaping charge to that of False Imprisonment which is a much less serious offense that also involves a lesser penalty. False imprisonment only requires a confinement of the person which may be an effective alternative to argue and negotiate for the Defendant.
Call the Law Office of David Schwarz to find a lawyer who can defend you in a domestic violence and kidnaping charge.