Other crimes - Kidnapping

Learning Outcomes

This article explains kidnapping as an “other crime” against the person tested on the MBE and bar exams, including:

• Identifying and articulating the common law and modern statutory elements of kidnapping, including required mental states and the role of unlawful confinement.
• Differentiating kidnapping from false imprisonment and related restraint offenses by focusing on movement, secrecy, duration of confinement, and severity of interference with liberty.
• Applying asportation and confinement standards to fact patterns, determining when movement is incidental versus sufficient to support a separate kidnapping conviction.
• Evaluating the impact of consent, deception, victim capacity, and lawful authority on liability, and recognizing when these issues create complete or partial defenses.
• Recognizing aggravated kidnapping scenarios involving ransom, child stealing, intent to commit another felony, or serious bodily harm, and understanding their enhanced punishment and exam significance.
• Analyzing how kidnapping charges interact with robbery, rape or sexual assault, and assault, including when multiple convictions or merger principles are most likely tested.
• Spotting recurring MBE traps, such as trivial movement, brief restraint during another crime, or apparent child consent, and choosing the most defensible answer choice.

MBE Syllabus

For the MBE, you are required to understand kidnapping as part of the “other crimes” category in criminal law, with a focus on the following syllabus points:

• The elements of kidnapping at common law and under modern statutes.
• The meaning of asportation and substantial confinement or concealment.
• The role of consent, deception, and victim incapacity (e.g., minors, mentally impaired persons).
• Aggravated kidnapping (for ransom, to commit another crime, for offensive purpose, or involving children).
• The relationship between kidnapping and other offenses (robbery, rape/sexual assault, assault, false imprisonment).
• Available defenses (including lawful authority and lack of movement) and common exam pitfalls.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT an element of common law kidnapping?
   1. Unlawful confinement
   2. Movement of the victim
   3. Intent to kill
   4. Lack of consent
2. Under modern law, which of the following best describes "asportation" in the context of kidnapping?
   1. Any movement, no matter how slight
   2. Movement that increases the risk to the victim or aids the commission of another crime
   3. Only movement across state lines
   4. Only movement for ransom
3. A parent takes their own child, in violation of a court custody order, and hides the child in another state. Which crime is most likely to be charged?
   1. False imprisonment
   2. Kidnapping
   3. Assault
   4. Burglary
4. Which is a common defense to a charge of kidnapping?
   1. The victim was a minor
   2. The victim consented and had capacity to do so
   3. The movement was for a lawful purpose
   4. The victim was not physically harmed

Introduction

Kidnapping is a crime against the person involving unlawful restraint plus either movement or concealment of the victim. On the MBE, it often appears in fact patterns that also include robbery, rape/sexual assault, or false imprisonment. Correctly classifying the conduct and deciding whether a separate kidnapping charge is appropriate is a recurring testing point.

Key Term: Kidnapping
Kidnapping is unlawful confinement of a person, combined with either movement (asportation) or concealment in a secret or isolated place, without the victim’s valid consent or other legal authority.

Elements of Kidnapping

At common law, kidnapping was originally defined very narrowly as the forcible abduction or “stealing away” of a person from their country and sending them into another. That narrow cross-border element no longer reflects modern law.

Modern statutes and the Model Penal Code treat kidnapping as an aggravated form of false imprisonment. A typical modern formulation requires:

• Unlawful confinement of another person,
• Against that person’s will (lack of valid consent),
• Either by moving the victim (asportation) or by hiding/concealing the victim in a secret place,
• With at least a knowing or purposeful mental state as to the confinement and movement/concealment.

Different jurisdictions vary in detail, but for MBE purposes you should recognize this pattern: confinement + movement or concealment + absence of valid consent.

Key Term: Confinement
Confinement is forcing a person to go where they do not wish to go or to remain where they do not wish to remain, such that their freedom of movement is substantially restricted.

Key Term: Asportation
Asportation is the carrying away or movement of the victim from one place to another, in connection with the unlawful confinement.

Key Term: Secret Place
A secret place is a location chosen to conceal or isolate the victim from public view or help, such that discovery or rescue is made substantially more difficult.

Most states classify kidnapping as a felony, often with enhanced penalties when aggravating circumstances are present (for example, when the kidnapping is for ransom or to facilitate another felony).

Common Law vs. Modern Law

The historical common law requirement of removing the victim from their country has been abandoned. For exam purposes:

• Common law baseline (conceptually): focuses on forcible abduction and removal, illustrating that kidnapping is a serious liberty offense.
• Modern rule (what the MBE cares about): focuses on unlawful confinement and either movement or concealment, usually within the same state or even within the same building.

You might see a question refer to “common law kidnapping,” but the fact patterns nearly always track the modern elements discussed in this article.

Asportation and Confinement

The concepts of movement and confinement are central to distinguishing kidnapping from lesser offenses.

How much movement is required

Older cases sometimes suggested that substantial movement was required to constitute kidnapping. Modern statutes generally fall into three patterns:

• Some require any movement, however slight, if it is connected to the unlawful confinement.
• Others require movement that is more than trivial or incidental to another crime.
• A third category allows kidnapping based solely on confinement or concealment, with no movement required.

For exam purposes, assume the MBE is interested in whether the movement:

• Is more than what is normally necessary to complete another crime (like robbery or rape), and
• Either increases the risk to the victim or helps the perpetrator avoid detection or accomplish another crime.

Key Term: Incidental Movement
Incidental movement is limited movement of the victim that is merely part of committing another offense (such as ordering a bank customer to lie on the floor during a robbery), and is not enough by itself to support a separate kidnapping conviction in many jurisdictions.

Many courts use a risk or significance test: kidnapping is found only if the movement:

• Substantially increases the victim’s risk of harm beyond that normally involved in the main offense, or
• Has independent legal significance (for example, moving the victim to a remote location to hold them hostage).

Confinement-only kidnapping

Some statutes define kidnapping to include confinement plus concealment, even if there is no movement. Typical examples include:

• Locking someone in a basement or closet for hours or days,
• Tying someone up and leaving them in a remote cabin.

The key is that the confinement is serious and often secret, going beyond momentary restraint.

Consent, Capacity, and Lawful Authority

Consent plays a central role in both kidnapping and false imprisonment.

Key Term: Consent
Consent is a voluntary agreement to the confinement or movement, given freely and without coercion, deception, or impairment.

Key Term: Capacity
Capacity is the legal and mental ability to give valid consent, which may be lacking in minors, individuals with significant mental impairment, or highly intoxicated persons.

Valid consent

If the victim freely consents to the movement or confinement and has capacity to do so, kidnapping is not committed. For consent to be valid:

• It must not be obtained by force, threats, or fraud.
• The victim must be competent to understand the nature of what they are agreeing to.
• The victim must be free to withdraw consent; continued confinement after withdrawal can become kidnapping.

Deception can invalidate consent, especially when it relates to the nature of the confinement or the destination. For instance, tricking someone into entering a car for a supposed short ride and then locking them in a remote cabin can amount to kidnapping.

Incapacity and minors

Consent is often invalid when given by:

• Young children (typically defined by statute, but on the MBE assume minors lack capacity for serious confinement decisions),
• Persons with significant mental illness or cognitive impairment,
• Persons so intoxicated or drugged that they cannot meaningfully understand or decide.

This is especially important in child-stealing scenarios.

Key Term: Child Stealing
Child stealing is leading, taking, enticing, or detaining a child with intent to keep or conceal the child from a parent or lawful guardian, often treated as an aggravated form of kidnapping.

A child’s consent to go with the defendant is legally irrelevant when the defendant intends to conceal the child from a parent or guardian.

Lawful authority

Police officers, parents, or others acting under valid legal authority may restrain or move a person without committing kidnapping, provided they act within the scope of that authority:

• A police officer executing a lawful arrest warrant does not kidnap the arrestee.
• A parent may impose reasonable discipline and restrictions, but crossing into secret removal to thwart custody rights can transform the conduct into child kidnapping under specific statutes.

Aggravated Kidnapping

Many jurisdictions distinguish between basic kidnapping and aggravated kidnapping, which carries significantly higher penalties.

Key Term: Aggravated Kidnapping
Aggravated kidnapping is kidnapping committed with certain aggravating factors, such as ransom, intent to commit another felony, serious bodily harm, or involving particularly vulnerable victims (e.g., children).

Common forms of aggravated kidnapping include:

• Kidnapping for ransom: abducting or concealing a person to obtain money, property, or another benefit in exchange for their release.
• Kidnapping to commit another crime: seizing or confining someone for the purpose of robbing, raping, or otherwise harming them.
• Kidnapping for offensive purpose: abducting someone to inflict injury, terrorize, or commit a sexual offense.
• Child stealing: taking or keeping a child to conceal the child from a parent or guardian, often expressly listed as an aggravated form.

On the MBE, facts such as a ransom note, threats to keep someone as a hostage, or moving a victim to a location to commit rape typically signal aggravated kidnapping.

Kidnapping vs. False Imprisonment

Kidnapping is best understood as false imprisonment plus something more.

Key Term: False Imprisonment
False imprisonment is the unlawful confinement of a person, without their valid consent, and without the additional movement or concealment that characterizes kidnapping.

At common law, false imprisonment consisted of:

• Unlawful confinement,
• Without the person’s valid consent.

The Model Penal Code adds that the confinement must “interfere substantially” with the victim’s liberty.

The distinction:

• False imprisonment: restraint or confinement only.
• Kidnapping: restraint plus either asportation or concealment in a secret place.

In jurisdictions where kidnapping can be based solely on serious confinement (even without movement), the key differences become severity and secrecy. Kidnapping involves more serious interference with liberty than ordinary false imprisonment.

Relationship to Other Offenses

Kidnapping often appears in multi-crime fact patterns. The exam commonly tests whether a defendant is properly charged with:

• The primary crime (e.g., robbery or rape), and
• A separate kidnapping.

Kidnapping and robbery/rape

Because many statutes define kidnapping as confinement involving movement, almost any robbery or sexual assault could technically include some movement. Courts in many jurisdictions restrict kidnapping liability by requiring that the movement:

• Not be merely incidental to the primary crime, and
• Substantially increase the victim’s risk of harm or facilitate the offense in a significant way.

Examples:

• Moving a bank customer a few feet to the ground during a robbery → incidental, typically no separate kidnapping.
• Forcing a victim into a car and driving them to a remote field to commit rape → non-incidental movement with increased risk → kidnapping plus rape.

Other courts take a broader view and treat any asportation as enough. On the MBE, when the facts clearly stress increased risk, duration, or secrecy, a separate kidnapping conviction is usually intended.

Multiple victims

Each person unlawfully confined and moved or concealed can be a separate kidnapping victim. A fact pattern involving a group of hostages may support multiple kidnapping counts.

Worked Example 1.1

A defendant grabs a victim from a public park, forces her into a car, and drives her three blocks to an abandoned building, where he locks her in a room for several hours. The victim escapes and calls police. What crime(s) has the defendant committed?

Answer:
The defendant has committed kidnapping because he unlawfully confined the victim and moved her a substantial distance to a secret location, increasing her risk and aiding concealment. The confinement also supports false imprisonment, but that offense merges into kidnapping as the more serious restraint offense. Depending on additional facts (e.g., attempted sexual assault or robbery), other charges might also apply.

Worked Example 1.2

During a bank robbery, the robber orders customers to move from the lobby to a back office to prevent them from being seen. The movement is brief and within the same building. Is this kidnapping?

Answer:
Likely not. The movement is minimal and appears incidental to the robbery. It does not significantly increase the victims’ risk beyond that normally involved in the robbery itself and serves no independent criminal purpose beyond furthering the robbery. Many courts would refuse to support a separate kidnapping conviction on these facts.

Worked Example 1.3

Olivia and Paul decide to rob a grocery store. Alex, the clerk, trips the silent alarm. Olivia grabs Scott, a shopper, and forces him into the store’s meat locker at gunpoint. A standoff follows, and police eventually persuade Olivia to release Scott unharmed. Olivia and Paul are charged with kidnapping both Alex and Scott. Are they guilty of kidnapping each victim?

Answer:
Olivia is guilty of kidnapping Scott. She unlawfully confined him and moved him from the shopping area to the meat locker, a concealed, more dangerous location, substantially increasing his risk of harm and aiding her attempt to avoid capture. By contrast, Alex was never moved or concealed; he was simply present in the store during the robbery. Unless the facts show Alex was confined in a way that meets the jurisdiction’s kidnapping standard (e.g., locked in a back room or otherwise substantially restrained), Olivia and Paul are not guilty of kidnapping Alex, although they are liable for robbery and any associated offenses against him.

Worked Example 1.4

A father with no custodial rights picks up his six-year-old child from school, in violation of a court order, and drives the child to another state. He refuses to tell the custodial parent where they are. The child happily agreed to go with the father. What crime has the father most likely committed?

Answer:
Many modern statutes define this conduct as child kidnapping or child stealing, a form of aggravated kidnapping. The father intentionally took and concealed the child from the lawful custodian. The child’s apparent consent is legally irrelevant because a six-year-old lacks capacity to consent to this kind of removal and concealment. The father’s violation of the custody order further supports the unlawful nature of the confinement and movement.

Defenses and Exam Traps

Although kidnapping is a serious offense, there are recurring issues that can create reasonable doubt or a complete defense.

Common defenses include:

• Lack of confinement or movement: If the victim was free to leave or the movement was trivial and not connected to confinement, kidnapping is not established.
• Valid consent with capacity: If an adult victim clearly and voluntarily agrees to travel with the defendant and remains free to leave, kidnapping cannot be proved.
• Lawful authority: Police, parents, or guardians acting within their legal authority are not kidnappers.

Because kidnapping is usually a general intent or “knowingly/purposely” crime regarding the confinement and movement, voluntary intoxication is generally not a defense. An honest and reasonable mistake about the victim’s consent might negate the wrongful intent in some jurisdictions, but the MBE will rarely hinge solely on that detail.

Exam Warning

On the MBE, do not assume every movement or restraint during another crime is kidnapping. Look for movement that is not merely incidental to the main offense and that increases the victim's risk or aids the perpetrator (for example, moving the victim to a remote, secret, or more dangerous location).

Revision Tip

Always check for consent and capacity. If the victim consented, had legal capacity, and remained free to withdraw that consent, kidnapping cannot be proven.

Key Point Checklist

This article has covered the following key knowledge points:

• Kidnapping is an aggravated form of false imprisonment involving unlawful confinement plus movement (asportation) or concealment in a secret place.
• Modern statutes no longer require removal from one country to another; movement within a state—or serious confinement alone—can suffice.
• Asportation must be more than trivial in many jurisdictions and should not be merely incidental to another crime; look for increased risk to the victim or independent criminal significance.
• Some statutes recognize confinement-based kidnapping even without movement, especially when the victim is hidden or isolated.
• Consent is a defense only if it is freely given, not obtained by force, threats, or fraud, and comes from a person with capacity to consent.
• Children and certain mentally impaired individuals generally lack capacity to consent to confinement or removal; their apparent consent does not bar kidnapping or child-stealing charges.
• Aggravated kidnapping covers situations such as ransom demands, intent to commit another felony, serious bodily injury, sexual exploitation, or child stealing.
• False imprisonment is unlawful restraint without the additional movement or serious concealment that characterizes kidnapping.
• When another offense (such as robbery or rape) is present, a separate kidnapping charge is often appropriate only if the confinement or movement is not merely incidental and substantially increases the victim’s risk.
• Defenses focus on absence of confinement or asportation, valid consent, or lawful authority; voluntary intoxication is typically not a defense.

Key Terms and Concepts

• Kidnapping
• Confinement
• Asportation
• Secret Place
• Incidental Movement
• Consent
• Capacity
• False Imprisonment
• Aggravated Kidnapping
• Child Stealing