First, unlawful;

Second, (forcible seizure and confinement)/inveiglement;

Third, of another;

Fourth, with intent to (confine)/(send out of the State)/(sell as a slave)/(hold to service);

Fifth, against the person's will.

OR

Fifth, the victim was 12 years of age or less at the time of the offense.

Committee Comments

The statutory language reads "without lawful authority," but the Commission has translated that language into the word "unlawful" in the first element. The Commission has decided that the words "without lawful authority" and "unlawful" are synonymous. The Commission has chosen to use the word "unlawful" in order to promote consistency of language among the various instructions. Moreover, the word "unlawful" is more concise. The definition of the word "unlawful" should encompass either of two concepts: (1) that the person who confines another lacks legal or domestic authority; or, (2) that the person who confines another has used fraud to induce consent to the confinement. Either lack of authority or use of fraud makes the confinement unlawful. R. Perkins, Criminal Law 182 (2d ed. 1969). See Williams v. State, 1953 OK CR 41, 255 P.2d 532, overruled on other grounds, Parker v. State, 1996 OK CR 19, ¶ 23, n.4, 917 P.2d 980, 986 n.4.

The second element lists the two alternative activities prohibited by the kidnapping statute. An action is criminal under the kidnapping statute if the act is a forcible seizure and confinement, or inveiglement. The first alternative probably needs no explanation or illustration. The second alternative, inveiglement, is illustrated by Ratcliff v. State, 1955 OK CR 110, 289 P.2d 152 (12-year-old girl enticed into a car by a man whom she thought to be a friend who would take her to a football game). See also Williams, supra (young boy enticed into a car by man who requested the youth's aid in locating a third person).

Even though a person unlawfully confines another, the crime of kidnapping has not been committed unless the accused has the specific mens rea of the crime. The gist of the offense created by section 741 is one of the four alternative mens rea requirements set forth by the statute. Perry v. State, 1993 OK CR 5, ¶ 13, 853 P.2d 198, 202 (analyzing "hold to service" provision); Jenkins v. State, 1973 OK CR 165, 508 P.2d 660; Oglesby v. State, 1966 OK CR 34, 411 P.2d 974; Vandiver v. State, 1953 OK CR 130, 261 P.2d 617.

The fifth element indicates that the actions of the accused must be against the will of the victim. A question is raised whether this fifth element is satisfied when the alleged victim went willingly with the accused because the accused inveigled the person to accompany him, although the person would not have gone willingly had he known of the inveiglement. The Commission has decided that, in these instances, the fifth element is satisfied by proof that the alleged victim would not have consented to accompany the accused if the victim had clearly known of the purposes intended by the accused.

There does not appear to be any requirement of asportation (i.e., carrying away) in section 741. See Turner v. State, 1990 OK CR 6, ¶ 13, 786 P.2d 1251, 1255 (finding no requirement of asportation or transportation in § 745, the kidnapping for purposes of extortion statute).