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When most people think of kidnapping, they imagine a hardcore criminal forcefully subduing and abducting an innocent victim who’s kicking and screaming for her life. 

In realty, most kidnapping charges derive from far-more innocuous facts. 

In Massachusetts, the crime of kidnapping is defined in M.G.L. c. 265, § 26.  (For a more reader-friendly interpretation of the statute see Jury Instruction 6.579). 

Essentially, anyone who forcibly confines another for any amount of time can be charged with kidnapping.  

Unfortunately, both “force” and “confinement” are defined very broadly by Massachusetts courts.  In fact, actual force isn’t even necessary.  The mere “display of potential force” will suffice.[1]  Similarly, the term “confinement” is broadly defined to mean “any restraint of a person’s movement.”[2]

Such an expansive interpretation of “forcible confinement” has opened the door for prosecutors to charge almost any person accused of robbery, rape, or even assault with the added offense of kidnapping. 

And a conviction for kidnapping is no joke.  Depending on the circumstances, a defendant could get up to 25 years in prison for kidnapping.  Moreover, anyone convicted of kidnapping—regardless of the circumstances—must submit their DNA to state authorities and can be added to the sex offender registry. 

Needless to say, if you’re charged with kidnapping, you absolutely must fight like hell to get the charge dismissed. 

One way to do this is by asking the court to “merge” the kidnapping charge with the other alleged offenses if the kidnapping was incidental to those other offenses.

According to the Massachusetts Jury Instructions for Kidnapping:

Where confinement is integral to another a crime, such as rape, it may merge into the other crime. Commonwealth v. Kickery, 31 Mass. App. Ct. 720, 723-724 (1991) (“any confinement of the victim during the rape itself did not exceed the restraint which was incident to the rape and did not constitute the separate crime of kidnapping, separate and apart from the rape”). Confinement beyond the minimum necessary to complete the other crime, however, may separately support a conviction for kidnapping. Commonwealth v. Cobb, 45 Mass. App. Ct. 271, 276 (1998) (tying the victim’s hands and feet and throwing a blanket over the victim’s head while searching for money and valuables was sufficient to support a conviction of kidnapping, in addition to convictions for home invasion and armed robbery).[3]

So if you’re accused of kidnapping when, in fact, the alleged kidnapping was only “incidental” to the other alleged charges, it may be possible (depending on the situation) for you or your attorney to file a motion to dismiss with the court.  The motion would argue that the charge of kidnapping should merge with the other crimes, per the cases cited above, and thus be dismissed from the list of charges.

For more on motions to dismiss criminal complaints in district court, read my article: Challenging Criminal Complaints in District Court: DiBennadetto Motions to Dismiss

[1] Commonwealth v. Titus, 32 Mass. App. Ct. 216, 221 (1992).  Emphasis added.  See also Commonwealth v. Cavacciola, 409 Mass. 648, 652 (1991).

[2] Commonwealth v. Lent, 46 Mass. App. Ct. 705, 710 (1999).  Emphasis added.

[3] See Jury Instruction 6.570 Note 4.