How much doubt is reasonable?
As a student of the English language, I’m convinced that doubt isn’t a reasonable thing in any of its many forms.
What I mean is that doubt is nothing but a feeling. A person can doubt the existence of God or doubt that she’s going to forget her phone number in the next two hours. A person can doubt another person’s statements because of a gut feeling based on her understanding of neuro-linguistics (eye movements) or body language. That’s what jurors are asked to do all the time–look at testimony skeptically.
In my opinion, the jury instruction that the prosecution must prove its case “beyond a reasonable doubt” is silly. And I know this is a phrase that is now prescribed in all criminal trials by the U.S. Supreme Court. I’ve researched the history of this phrase extensively, and what I’ve learned can’t be boiled down to a blog post. (Maybe I’ll write an article on the topic one of these days.)
But I think that what my gorgeous librarian-sleuth, Iris Ginge, concludes in The Juror Investigates is what judges really ought to tell juries: “The prosecution is presumed to be mistaken unless and until it proves otherwise.”
In Illinois, the criminal statute (720 ILCS 5/10-1) for the crime of kidnapping reads:
(720 ILCS 5/10-1)
(from Ch. 38, par. 10-1)
Kidnapping.) (a) Kidnapping occurs when a person knowingly:
(1) And secretly confines another against his will, or
(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or
(3) By deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will.
(b) Confinement of a child under the age of 13 years is against his will within the meaning of this Section if such confinement is without the consent of his parent or legal guardian.
Kidnapping is a Class 2 felony.
(Source: P.A. 79-765.)
You would hardly think that a jury would have to determine what simple words like “place” mean, but they do. And they may also have to decide when “one place” becomes “another.”
For example, consider this scenario: A bank robber takes a teller hostage as the cops burst into the bank. He drags the teller into the safe. He closes the door and holds her there with a gun to her head for hours. This may be kidnapping. The teller has been dragged from one floor of the bank to another and then into a locked safe, where the cops may or may not even realize she is being concealed. Concealment is clearly part of the robber’s motive for going into the safe.
Or consider this scenario: At a frat party, a date-rapist drags a girl into a bedroom and closes and locks the door before raping his victim. For several hours, he holds her against her will. As the other guests leave the party, she struggles to get away and tries in vain to cry out for help. Concealment is clearly part of the the rapist’s motive for taking his date into the bedroom and locking the door. And secrecy is also key. Imagine the woman’s fear and frustration at being so near to but so far from help. The rapist can terrorize this person very cruelly as long as she is concealed.
In both of the above scenarios, part of the terror of the victims comes from being involuntarily concealed with the threat of ongoing or future injury.
The criminal justice system is based on the assumption that the judge will make it clear to the jury whether a victim has, under the law, been carried from one place to another. Technically, the distance from “one place to another” isn’t relevant–in most cases. Kidnapping can be proved, for example, even if the safe into which the teller is dragged is mere feet from her workstation. A judge should explain this based on case law in the jury instructions.
However, the issue of “secret concealment” isn’t really an issue for judicial interpretation, in my opinion. The statute makes it clear that kidnapping is a crime in and of itself, not an aggravating factor to every other crime of violence. Every rape and sexual assault does not involve kidnapping. Every hostage situation does not involve kidnapping: if the bank robber shielded himself from police fire by holding a teller in front of him, he is not secretly concealing the teller.
So, I am convinced that a sex offender who drags his victim off a sidewalk is not knowingly and secretly confining a person against his will.
What do you think?
So, you think you know what kidnapping is? Imagine this: A rapist grabs a person and drags him or her 20 feet away to a place that is screened from view. He holds the person there for less than 5 minutes before the victim is rescued. As a juror, would you convict this defendant of kidnapping?
For my verdict, take a look at the “Postcard-Sized Solutions” category for this little mystery.