Kidnapping is the taking of another person using force or fear, a substantial distance (also called asportation), without consent. The defendant must have the belief that the person being taken did not consent. If the person being taken did consent, freely and voluntarily, or the defendant reasonably believed the person consented, no kidnapping has occurred.
The distance that is required to satisfy the element of asportation does not need to be much. Substantial distance is defined as more than slight or trivial. Grabbing onto someone’s arm in the store and making him or her take one step would not be considered a kidnapping (however, can still be a battery, assault or even attempted kidnapping if any prior intent to kidnap can be established).
One of the main defenses to kidnapping is consent. In order to establish consent, the person must have done so voluntarily. If there are threats made towards this person and they give in, that is not consent. If the person is unconscious or in some states below a certain age, they are considered incapable of consent, and therefore can never give consent legally, making this defense unavailable (but may also be an aggravating or mitigating factor depending on the circumstances).
Another possibility is that the defendant had the reasonable belief that the person taken gave consent. The key word for this is “reasonable”. Reasonable is always adjudged by what a reasonable person would believe – this is generally something a jury would decide. So, if a defendant says “want to go with me” and the victim states “yes” and volitionally goes with them, a reasonable person would think consent were given. However, if a defendant says “want to go with me”, while pointing a gun at their child, and the victim says “yes”, a reasonable person would not think that to be consent.
In some states consent can be withdrawn. In other words, the person being taken after agreeing to go freely and voluntarily, decides they no longer want to go with the defendant. At that point, if the defendant continues on their journey with the person against their consent, it will become a kidnapping. Again, this is judged by the reasonable person standard. If the person agrees to go, decides they do not want to mid-journey, but never conveys this to the defendant, a reasonable person would not believe that consent had been actually withdrawn.
Elements and crimes vary from state to state and within the federal system. If you or someone you know is charged with any crime, as always, you should a criminal defense attorney. You can always look for your local criminal attorney at http://www.crimelawyers.org.