In order to be convicted of kidnapping under MGL c. 265 s. 26, the prosecution must prove that you committed each of the following elements, beyond a reasonable doubt:
- Without lawful authority
- Forcibly or secretly confine or imprison another person in Massachusetts against his will, or forcibly sends the person out of Massachusetts against his will, or causes to be sent out of Massachusetts against his will, or in any way held to service against his will.
Kidnapping carries up to 10 years in state prison and $1,000 fine.
The most common defense to a kidnapping charge is consent; in other words, that the person was not taken, or sent away, "against his will." Why would a person accuse you of kidnapping them against his/her will if in fact they consented to going with you? Well, the person might have been in a vulnerable place in his/ her life at that time, and let you lead them in a way that he/she now regrets. However, the issue is not the person's state of mind now, it's only the person's state of mind and actions at the time you were with him/her that matter in a kidnapping charge.
A change of heart is not the only context in which a proper defense to "consent" may arise. If the alleged victim of the kidnapping is not able to testify for any reason (physically unable, in a coma, has gone missing, etc.), then even if the prosecution can prove elements 1 and 2, they may have a difficult time showing that the person was taken "against his will" without some other strong proof and corroborating evidence.
Kidnapping while armed with a firearm* carries a mandatory minimum 10 year state prison sentence.
* This charge does not apply to the parent of a child under 18 who takes custody of such child.
Kidnapping while armed with a firearm with intent to extort money or other property carries a mandatory minimum 20 year state prison sentence, up to life in prison.
Kidnapping while armed with a dangerous weapon and committing serious bodily injury or sexual assault carries a mandatory minimum 25 year state prison sentence, up to life in prison.
Kidnapping of a child under 16 years old** carries up to 15 years in state prison. Additionally, a conviction for this charge is considered a sex offense and requires registration with SORB.
** This charge does not apply to the parent of a child under 16 who takes custody of such child.
Kidnapping of a minor or incompetent by relative*** carries up to one year in jail. If the kidnapping exposes the minor or incompetent to a risk which endangers that person's safety, the punishment is up to 5 years in state prison.
*** This charge usually arises as the result of a custody dispute. If you take own your child without lawful authority, even if you think it's in your child's best interest, you could be facing jail time. You should always use the court's to fight for your parental rights rather than taking the law into your owns hands.
If you have been charged with kidnapping or any other criminal offense in Massachusetts, contact our office for your free initial consultation:
(617) 830- 2188