Kidnapping Charges Attorney in South Carolina
Kidnapping is a serious crime that involves unlawfully taking of a person against their will. This is a criminal offense in South Carolina, and anyone facing a kidnapping charge will face severe penalties. Penalties for kidnapping can include imprisonment, fines, being placed on the sex offender registry, and a permanent criminal record. If you or a loved one are facing kidnapping charges, our experienced criminal defense attorneys can help. David W. Martin Law Group are based in Fort Mill and are ready to protect your rights in any criminal case you may be facing.
What is Kidnapping?
According to South Carolina law, kidnapping is a felony that occurs when someone unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away another person without consent. Inveigling means to trick or deceive the victim into being detained or transported by the defendant. For the State to prove kidnapping occurred, they have to prove beyond a reasonable doubt that the following elements all occurred:
- The defendant committed an;
- Unlawful seizure, confinement, abduction, or carrying away;
- Of another person; and
- Without legal justification, authority, or consent of that other person.
Kidnapping is a continuing offense, it begins the moment the victim is wrongfully deprived of their freedom, and it continues until they are no longer under the defendant’s control or custody.
When Does Kidnapping Become a Federal Crime Instead of a State Crime?
Kidnapping can become so serious that it violates federal law. This means that the defendant will be prosecuted by the federal government and held in federal prison rather than facing a state attorney and a state facility. The federal statute, otherwise known as the Lindbergh Act, defines kidnapping in the same way as the South Carolina statute, but it adds specific elements that apply to federal cases. These include:
- Transporting a person across state boundaries;
- The offender travels across state boundaries or uses the mail or any means in committing or furthering the offense;
- Kidnapping is committed within special maritime or aircraft jurisdiction of the United States;
- The person is a foreign official, an internationally protected person, an official guest; or
- The person who is a foreign official, an internationally protected person, or an official guest is engaged in the performance of their official duties.
Also, where the defendant fails to release the victim within 24 hours of kidnapping them, the law creates a rebuttable presumption that the victim has been transported across state lines. In other words, if the defendant kidnaps and holds the victim for over 24 hours, the kidnapping becomes a federal offense. However, it is a rebuttable presumption, which means that the defendant can argue against this presumption by demonstrating they did not transport the victim across state lines. This is a legal distinction where it can be crucial to have qualified and passionate criminal legal representation to ensure that you are receiving a just trial process and sentence.
Special Rule for Kidnapping Involving Children
If the victim of the kidnapping offense is under the age of 18 years old and the offender is over the age of 18 years old, that offender will face a sentence of no less than 40 years imprisonment. For most individuals, that is essentially a life sentence or very close to it.
Although, there are specific exceptions to this enhanced sentence. If the offender is either a minor or an adult who is a parent, grandparent, brother, sister, aunt, uncle, or an individual with legal custody of the victim. The term ‘parent’ does not include any individuals whose parental rights have been terminated by a final court order.
Again, similar to the State Law, it is generally considered more serious when an offender kidnaps a child compared to an adult. Both are serious offenses and are treated as such under State and Federal laws.
The penalties for a federal kidnapping conviction are much more severe than a state conviction. Kidnapping under the federal statute can be punished by life imprisonment. The death sentence for this offense is more likely to be used in cases where the victim was either injured or killed by the defendant.
Recent Kidnapping Case in South Carolina
In September 2022, Dominique Devonah Brand was convicted of kidnapping, along with other serious charges. Dominique entered the 80-year-old victim’s home and shot Mary Ann Elvington. Dominique then forced Mary Ann to drive him from her house in North Carolina back to South Carolina, where he sat behind her with a shotgun pointed at her head. Mary Ann was unfortunately murdered by the defendant after he kidnapped her.
In this case, there is a federal element to it, and the defendant ultimately murdered the victim. Both of those conditions make this offense and its penalties much more serious. The defendant will be sentenced by a federal judge and could face anywhere from life imprisonment to the death penalty.
The burden of proof in any criminal trial always rests with the prosecution to prove the defendant’s guilt beyond a reasonable doubt. Therefore, as a defendant, you have to raise inconsistencies or an alibi to avoid conviction. The best way to develop a sound defense that will be successful in court is to work with talented criminal defense attorneys who understand your case.
Minor Child and Parent
The kidnapping statute specifically provides an exception to kidnapping where a minor child is being taken or seized by a parent. However, a parent kidnapping a minor child does occur, especially in custody situations. According to South Carolina law, it is unlawful for a parent or guardian of a child under 16 years of age to take, transport, or cause to be taken or transported, the child from their legal custodian for the purpose of concealing the child or violating the custody order. If that person has taken the child outside of the state of South Carolina for more than 72 hours without any notice to their legal custodian, can also be charged with kidnapping.
Consent by the Alleged Victim
Kidnapping is an offense that requires the alleged offender to take the victim without consent or legal authority to do so. Therefore, if it is determined that the victim actually consented to be taken by the defendant, then it is no longer kidnapping. This is also a relevant defense under the federal statute. The issue with this defense arises where the victim initially consented to some act with the defendant but does not constitute full consent to the kidnapping crime that later occurred. That is why working with experienced attorneys who can investigate the unique facts of your case can protect your interests and ensure you receive justice.
Mistake of Fact
Mistake of fact can be a successful defense where the defendant never intended to commit the crime. The mistake must be reasonable and must negate key elements of the offense. For a kidnapping charge, this would require the offender to have reasonably misunderstood that they were taking a person against their will to another location. It is rare that this defense would be fully exhaustive and prevent any type of punishment. This is because the mistake has to appear reasonable to an average person, and with an offense as serious as kidnapping, this can be a difficult argument to make. Again, working with talented criminal defense lawyers can help craft these arguments for your case.
What are the Penalties for Kidnapping?
The penalty for kidnapping is imprisonment of up to 30 years upon conviction. However, where the defendant is facing more criminal charges than just kidnapping, they may face up to life imprisonment.
Sex Offender Registry
Further, if the defendant is convicted of kidnapping a minor child, they will be placed on the Sex Offender Registry. The South Carolina Sex Offender Registry makes the following information available to the public:
- Current offense for which the offender is required to register;
- Any other offense they have been convicted of that qualifies the individual as a sex offender;
- Address of any place where the offender is a current employee;
- Name of the offender, including any aliases;
- A current photograph of the offender;
- A physical description of the offender;
- The address of the offender, including any information about where the offender habitually lives if the individual is homeless;
- The address of any place where the offender attends school; and
- Vehicle license plate number and description.
An offender may be removed from the sex offender registry immediately upon that person’s conviction being reversed, overturned, or vacated on appeal. Also, if the offender receives a pardon for the offense that required them to register, they will be removed from the sex offender registry.
Our Criminal Defense Attorneys Can Help
Kidnapping is a serious offense in South Carolina that carries with it severe penalties. If you or someone you know has been accused of kidnapping and is in need of advice, call us today at 843-891-6839. At David W. Martin Law Group, our skilled attorneys are ready to help you understand the charges against you, develop a strong defense strategy, and fight to protect your rights and freedom.
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