Military courts have described kidnapping as “one of the most heinous offenses known to the law”—and for good reason. Kidnapping deprives a person of their fundamental right to liberty and freedom of movement and usually involves force, violence, or other forms of coercion. Kidnapping often occurs within dating or romantic relationships as part of intimate partner violence, and perhaps nothing is more terrifying that stranger kidnappings of minors.
Given the seriousness of this offense, a service member suspected of kidnapping needs an experienced law firm in their corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCM. When your military career, future, and freedom are on the line, don’t go it alone. Contact one of our military defense lawyers today for a free consultation.
What is Kidnapping under Article 125, UCMJ?
To be guilty of violating Article 125, UCMJ, the Government must prove three elements:
- That the accused seized, confined, inveigled, decoyed, or carried away a certain person;
- That the accused then held such person against that person’s will;
- That the accused did so wrongfully.
Let’s break down the important definitions from those elements.
First, in order to be a violation of Article 125, the government must prove that an accused seized, confined, inveigled, decoyed, or carried away a certain person. “Inveigle” is an older true, not often used anymore, which means to “lure, lead astray, or entice by false representations or other deceitful means. For example, a person who entices another to ride in a car with a false promise to take the person to a certain destination has inveigled the passenger into the car.” To “decoy” simply means to entice or lure a person in through some fraud, trick, or temptation.
Next, the government has to prove that the person kidnapped was actually held or detained in some way. This holding “must be more than a momentary or incidental detention.” For example, the Manual for Courts-Martial explains that “a robber who holds the victim at gunpoint while the victim hands over a wallet, or a rapist who throws his victim to the ground, does not, by such acts, commit kidnapping. On the other hand, if, before or after such robbery or rape, the victim is involuntarily transported some substantial distance, as from a housing area to a remote area of the base or post, this may be kidnapping, in addition to robbery or rape.
Additionally, the government must show that such holding was against the person’s will which simply means that they were held “involuntarily.” For example, a person might be lured or enticed by false representations from their significant other to attend a surprise birthday party planned for them but it’s not kidnapping because, presumably, they wanted to be there. “The involuntary nature of the detention may result from force, mental or physical coercion, or from other means, including false representations.” To determine whether someone is being held voluntarily, courts will consider whether the person had the means and opportunity to leave.
Finally, in order to prove kidnapping, the government must show that the accused’s actions were wrongful (i.e. without legal justification or excuse). For example, law enforcement officers have the legal authority to seize and hold people against their will, including through the use of force, if they reasonably believed they have committed an arrestable offense.
Is Kidnapping a “Covered Offense” and Why Does it Matter?
Kidnapping is such a serious crime that it is considered a “covered offense” under the UCMJ and is therefore handled by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:
- Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
- Article 118, Murder
- Article 119, Manslaughter
- Article 119a, Death or Injury of an Unborn Child
- Article 120, Rape and Sexual Assault
- Article 120a, Mail, Deposit of Obscene Matter
- Article 120b, Rape and Sexual Assault of a Child
- Article 120c, Other Sexual Misconduct
- Article 125, Kidnapping
- Article 128b, Domestic Violence
- Article 130, Stalking
- Article 132, Retaliation
- Article 134, Child Pornography
- A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.
The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date. When going up against the best prosecutors in the Department of Defense, service members facing court-martial for kidnapping need to have the very best legal defense representation.
What are the Defenses to Kidnapping?
Any defense under Article 125 is highly fact specific. A kidnapping charge may be defeated if the defense can show that the accused had a legal right to detain the person or if the alleged victim was not being held against their will. Additionally, because kidnapping is a general intent crime, an accused can raise a mistake of fact defense if he or she honestly and reasonably believed the alleged victim acted voluntarily in going with or staying with him. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.
What is the Punishment for Kidnapping?
The maximum punishment for violating Article 125 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole. Kidnapping is considered a Category 3 offense under the Manual for Courts-Martial’s new sentencing guidelines and therefore requires a sentence of 30-120 months of confinement for any conviction.
Protect Your Freedom and Military Career
When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, discipline, and court-martial for the most serious offenses under the UCMJ and will ensure that every defense is aggressively pursued on your behalf. Contact us today for a free consultation.