"Double offense" problems in kidnapping and false imprisonment cases.

• Author: Sanders, Richard
• Position: Florida

Florida criminal law has long protected a person's interest in freedom from unlawful restraints and confinements. Current statutes recognize the offenses of kidnapping and false imprisonment. Both statutes create a "double offense" problem well known in this area of the law: They define the constraint element of the offenses so broadly that the type of constraint inherent in the commission of other offenses (e.g., robbery, sexual battery) often also proves an additional offense of kidnapping or false imprisonment. Although Florida courts have dealt with this problem to some extent, it still exists. This article discusses the case law and offers possible solutions to the problem.

Constraint Element in Florida Statutes

Kidnapping is defined as

forcibly, secretly, or by threat confining, abducting, or imprisoning another ... with intent to: 1. hold for ransom or reward or as a shield or hostage[;] 2. commit or facilitate commission of any felony[;l 3. inflict bodily harm upon or to terrorize the victim or another person[; or] 4. interfere with the performance of any governmental or political function. (1)

False imprisonment is defined as "forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will." (2) In this article, the actus reus element of these offenses--"confining, etc."--will be called the constraint element.

These two offenses "are identical except for the question of intent." (3) Thus, although there are no Florida cases defining the constraint element of kidnapping, the cases addressing that element in false imprisonment should also apply to kidnapping.

Those cases broadly define the constraint element to include any "act ... depriving the victim of personal liberty or freedom of movement for any length of time." (4) The constraint need not be "substantial"; "some amount of force to [con] strain" is sufficient, even though the victim is only "briefly deprived of her ability to leave." (5) False imprisonment convictions have been upheld when the defendant: grabbed the victim's elbow and jerked her arm back and forth "kind of like a tug of war"; (6) wrapped his arms around the victim and held her in "a bear hug"; (7) grabbed the victim by her shoulders as she walked away from her door and tried to pull her into her home; (8) followed two victims into their motel room, forced them at gunpoint to lie on the bed, then ordered them into the bathroom while he searched the room; (9) hit the victim over the head with a bicycle pump, then "pin[ned] her against a fence" for five to 10 minutes while he hit her; (10) held the victim on a sofa at gunpoint while his accomplice searched the house; (11) grabbed the victim by her hair when she tried to leave, "wrestled her to the ground, pinned her arms underneath her legs, started to choke her[, then[ dragged her by the hair and neck from the living room to the bedroom"; (12) grabbed the victim, "slung her against the counter and grabbed her hand and put it on his penis"; (13) and grabbed the victim and pushed her into a car, then held her down while "ask[ing] her how much money she had." (14)

With such a broad definition of constraint, both kidnapping and false imprisonment are vulnerable to the double offense problem. As the cases just noted show, under this broad definition the constraint that often occurs during the commission of other offenses would also constitute a separate offense of kidnapping or false imprisonment.

The source of this problem is the 1974 law that enacted the current Florida statutes. (15) The pre-1974 statutes outlawed "forcibly or secretly confin[ing] or imprison[ing] another ..., with intent to either cause him to be confined or imprisoned ..., or cause him to be sent out of this state[, or] to hold ... for ransom." (16) The constraint elements in the current statutes are essentially identical to the elements in the former statutes. However, the expanded intent provisions significantly broadened the scope of the offenses, thus creating the double offense problem.

The current kidnapping statute is a hybrid of the former statutes and the Model Penal Code. The four intents contained in [section] 787.01(1)(a)1-4 come directly from the code. However, the code has a more restrictive constraint element: "remov[ing] another from his residence or place of business, or a substantial distance from the vicinity where he is found, or ... confin[ing] another for a substantial period in a place of isolation." (17)

The code's authors were aware of the double offense problem. That problem often arose in states that broadened the definition of kidnapping. At common law, "kidnapping was a relatively unknown and inconsequential offense[,] defined as the unlawful confinement and transportation of another out of the country." (18) The offense was statutorily expanded over the years. However, when the asportation requirement of the common law offense is reduced to a simple constraint element, a strict reading of a kidnapping statute could lead to "relatively trivial instances of unlawful restraint ... be[ing] dealt with as severely as abductions for ransom." (19) Noting "[t]he crime of kidnapping has always required more than the unlawful assertion of physical control over another," the code's authors asserted:

The central problem in the law of kidnapping is to restrict the drastic sanctions for this offense to instances of misbehavior warranting such punishment. The challenge ... is to define the crime in terms that identify a distinct kind of wrongful act....

[T]he definition of kidnapping [should not] sweep within its scope conduct that is decidedly wrongful but that should be punished as some other crime. (20)

The code's authors felt the offense of kidnapping should be "confined to cases of substantial isolation of the victim from his normal environment, [i.e.,] frightening and dangerous form[s] of aggression not adequately dealt with by other offenses." (21) In adopting a conservative constraint element, the code sought to restrict kidnapping "to cases of substantial removal or confinement," in order to both "punish conduct that effects substantial isolation of the victim from the protection of law" and "confine the offense to instances where the degree of removal and confinement coupled with the purpose of the kidnapper render the conduct especially terrifying and dangerous." (22)

When the Florida...