Kidnapping v. Child Abduction: What’s the Difference? Criminal Defense Attorneys Explain

What’s the difference between kidnapping and child abduction?

The basic difference between kidnapping and child abduction is the following:

kidnapping involves either the taking of a person without consent or legal justification, or secretly confining a person without consent or legal justification, and usually for the purpose of committing another crime against that person, such as rape, robbery, torture, etc.

Note: Confining a person, without either violence against the victim, or movement of the victim, is often filed as a false imprisonment in California (PC 236). In California, the difference between false imprisonment and kidnapping has to do with whether there is alleged violence against the victim, or movement of the victim (aka asportation).

Child abduction is either taking or keeping a child, usually by a parent or close relative of the child. Child abduction usually occurs in the context of a violation of a child custody, child visitation, criminal protective order (CPO), or domestic violence restraining order (DVRO). Child abduction usually happens with a willing victim, such as a child too young to know what’s happening. Also, the child abductor is not usually looking to commit some further crime against the child, such as lewd acts against the child, willful endangerment against the child, etc.

Note: The level of force used against the victim in child abduction cases is almost always lower than the level of force used against the victim in kidnapping cases. This is because the child victim rarely needs physical force to convince them to go with the defendant (i.e., child victim's mom, dad, grandma, stepparent, etc.).

The above-described difference between kidnapping and child abduction is the basic difference between the two crimes. However, there are some other differences between kidnapping and child abduction that are important if you are charged with either crime. If so, let’s take a closer look at the difference between kidnapping and child abduction.

California Kidnapping Laws

In California, Kidnapping is defined at California Penal Code Section 207 (PC207(a)): “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping" (PC 207 Abbrev.).

Every person, who for the purpose of committing any… lewd or lascivious act upon a minor under fourteen years of age, persuades, or seduces a minor, by false promise or misrepresentations, to get the minor to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping (PC 207(b) Paraphrased and Abbrev.).

Force Used to Take a Child: When a child is kidnapped, the force required in the taking of the child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent (PC 207(e)).

California Child Abduction Laws

In California, child abduction is defined at California Penal Code Sections 278 & PC 278.5(a). (PC278 & PC278.5(a)). Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian, is guilty of child abduction (PC 278 Abbrev.).

Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, is guilty of child abduction from a person with rightful custody (PC 278.5(a) Abbrev. & Paraphrased).

Note: You can kidnap a child, but you cannot commit child abduction against an adult. Also, kidnapping usually occurs in the context of a person taking another person against the victim’s will, by force, for the purpose of committing further crimes against the victim (i.e., lewd acts upon a minor, robbery, etc.). However, kidnapping can occur even when a victim is not moved. For example, if the defendant does not allow a victim to leave the defendant’s house, which is backed by the defendant's criminal threats against the victim if the victim does leave the defendant's house, then kidnapping is committed.

Penalties: The difference between kidnapping and child abduction is severe in terms of penalties. California kidnapping can lead to an eight (8) years prison sentence (PC 207). If the kidnapping is for the purposes of committing a sex act against the victim, then the defendant could face up to life in prison (PC 209). Child abduction crimes generally have a maximum punishment of up to three years of incarceration (PC 278). Also, the sentencing range for child abduction depends largely on any mitigation factors present in the case, such as whether the child was injured during the child abduction, the length of time the child was abducted, whether the child was returned by the abductor before a warrant issued, etc. (PC 278.6).

Defenses: Many of the defenses that apply to kidnapping may also apply to child abduction in California (i.e., statute of limitations, illegal search and seizure, insanity, mistake of fact, etc.). There are special defenses that apply to both kidnapping and child abduction that are very similar.

For example, it could be a defense to both kidnapping and child abduction where the defendant reasonably feared for the victim’s life if the victim was not otherwise ‘taken.’ This is more commonly used in defense to child abduction charges under PC 278 & 278.5, where the child’s parent is claiming that the abducted child’s other parent is a danger to the child.

For more information on the difference between kidnapping and child abduction, or if you or a loved one is charged with either kidnapping (PC 207 or 209), or child abduction (PC 278 or 278.5), contact our criminal defense lawyers today for a free consultation. Also, you may find more differences between these two crimes at our articles on kidnapping and child abduction, respectively. Our defense team has experience with both kidnapping and child abduction cases in the Inland Empire, including the cities of Fontana, Ontario, Rancho Cucamonga, Victorville, Rialto, Redlands, San Bernardino, Riverside, Chino, Highland, and more. Call today!