To Glenn L. Way:
9-1-05
Dear Mr. Way,
I recently came across a document from the 2001 General Session of the Utah Legislature. It was H.B. 240, and entitled “Kidnapping Amendments”. I see that you were identified there as its sponsor.
I have a number of comments and concerns pertaining to those modified laws, and that is my purpose in writing you today. I would very much appreciate any time and trouble you might invest in responding to these issues.
In the event that you do not have convenient access to the records anymore, I have enclosed the relevant passages here, as they appear on the website from which I gleaned this information.
I am particularly interested in the amendments to the Aggravated Kidnapping and Unlawful Detention laws, as it seems to me that the amended law gives rise to a number of problematic and incongruous possibilities.
First is that the new laws allow the Ag. Kid. to be committed in concert with a b misdemeanor (Unlawful Detention). That allowance, in and of itself, strikes me as draconian. But to complicate the confusion allowed therein is that the very wording of the Unlaw. Det. statute, cites “circumstances NOT constituting a violation of:…kidnapping” (italics mine). Thus, the result is that an actor can seemingly commit Ag. Kid. during the course of a transgression which falls short of a kidnapping. In other words, we can envision an Ag. Kid. occurring without requiring a kidnapping at all! That seems odd.
But there are several other conundrums built into this amended law. One is that the aggravating factors can include consensual situations. For example, one of the aggravating circumstances includes the Sexual Abuse of a minor: an A misdemeanor, enlisted under the Sexual Offenses of Title 76, Chapter 5, Part 4 of the Utah Criminal Code. Those include the Sexual Abuse of a minor- which is defined as a consensual circumstance.
Thus, it seems that not just either, but BOTH the factors in an Ag. Kid. can be misdemeanors. I mean both “legs”, if you will: the “kidnapping” and the “aggravation.”
One might further wonder whether the “acting with intent” element would include an ATTEMPT at the relevant transgression. If so, then the building blocks of that Ag. Kid. law could be two b misdemeanors: Unlawful Detention, and the Attempted Sexual Abuse of a Minor! Do you agree with me that that juxtapostion is abominably draconian- considering that a conviction under the Ag. Kid. statute carries a minimum mandatory prison sentence?! Surely that was not your intent, upon sponsorship of this amendment?
Ah, but it grows still worse. For I see that the tenets- or elements- of the Unlawful Detention statute were changed as well. I see that whereas formerly there was at least a definition of “detention” in place- which called for the common sense expectation that a detention require at least some degree of interference with liberty- that the amended version calls for no such thing. The amended statute gives no definition of detention at all!
How then, in light of the Utah Legislature’s express purpose, under 76-1-104 (Purposes and principles of construction), can such a set of circumstances be permitted?
For without any kind of a definition of detention, it seems to me that a Judge can impose his/her own definition of detention- and that his definition need not call for the slightest degree of interference with liberty: that it might call for a very much lower standard of conduct as constituting a “detention”.
Obviously you neither drafted nor sponsored the statutes as they existed prior to the 2001 amendment, so I can hardly take you to task for any deficiencies that existed before that time. But the fact that they apparently needed to be amended leads me to wonder what it was about them that lent themselves to modification?
That question draws me to line 135, which speaks to the presumption of “force, threat, or deceit…” But the wording there still called for a detention to be established before the questions of force, threat, or deceit were dealt with. Perhaps that was part of the problem. If so, then the new laws seem only to muddles that quandary even more. At least the old wording clarified- as I said- the need for an “interference with liberty…”.
Ah, but there are still other factors to consider here. For as convoluted, and draconian as those amended laws have become (for lack of working definitions, and for inclusion of the contradictions I have elucidated), there is still the critical statutory element which speaks to the “consent of the victim”. And it seems that that element, at least, should put all those other convolutions into line.
But look at them again. For while the sexual offenses, under 76-5-4 do speak to the actor’s mental state- his knowledge- as a factor in the evaluation of his culpability- the Unlaw. Det. and Kidnapping laws do not address that factor at all! In other words, different standards of competence are employed on either side of the Ag. Kid. equation!
Thus, in the case of a victim with some mental handicap, the statutory allowance appears to be that she might be judged as competent to consent to having sexual relations with her “kidnapper”, but too incompetent to have consented to be with him in the first place! That is absurd. And that absurd circumstance arose because the Legislature has not defined mental incompetence either, as it seems to me you also must, under 76-1-104.
For lack of that definition, it is difficult to tell whether you intended a strict liability on that point. But if you did, then that intention strikes me as unsupportable, since even “experts” have difficulty agreeing on what “mental incompetence” is. It is not some-thing that the man on the street can be reasonably expected to assess.
That absurdity of that conundrum is underscored by the fact that the Legislature has shown themselves able to address a reasonable standard of conduct elsewhere: under the sex laws. And they have done that by addressing the Actor’s subjective mental state. Why cannot the detention statutes include a similar provision? Why has the Legislature created a law that embraces such inconsistent and confusing standards?
Now let us consider the hypothetical circumstance in which a “mentally incompetent” teenager solicits a ride. How would the Utah legislature construe that scenario? Is that a detention? If so, then is that detention in fact a kidnapping, since he/she is under eighteen years old? If so, then the circumstance that might construe an Ag. Kid. has become one in which an actor might pick up a mildly retarded teen-aged hitch-hiker, transport her to where she wants to go, and- at her invitation- attempt to touch her breast along the way.
For lack of definitions, Mr. Way, THAT scenario could now be prosecuted as an Ag. Kid. in the State of Utah! Is that what you intended? I hope not!
Personally, I find that allowance appalling- especially since the actor does not even have to know that the victim is mentally incompetent to be guilty of it. Nor does he even have to know that the victim is a minor. Are you really comfortable with a strict liability first degree felony? And one which can even seem consensual all the way, to a reasonable person?
Now, and finally, I ask you to consider what might happen if a Judge, faced with an Actor accused of an Ag. Kid.- arising from just such a scenario as I have described- ended up throwing out the sex charge, at a Preliminary Hearing. Shouldn’t we then reasonably expect the Ag. Kid. law to tumble away of its own weight, having lost one of the “legs” it stood upon? To me, that would certainly seem reasonable.
But suppose that the Judge, instead of binding the Accused over for trial on the Unlaw. Det. Charge, instead scrolled down from the now-unsustainable Ag. Kid. charge, and- in search of a “lesser included”- said “Well the Un. Det. Charge and the Ag. Kid. charge are inconsistent (owing to the incongruous language), so it’s either Kidnapping or nothing”. Let us say that that Judge then levied a Kidnapping charge upon the Actor- even though the Ag. Kid. charge had been built upon the Un. Det. in the first place! Let us also say that the Un. Det. was levied upon a standard of merely “taking the victim somewhere”: that owing to the lack of definition, no interference with liberty was so much as alleged. Let us even say that the victim said she’d felt free to leave at any time.
Would that result, then, be consistent with the Legislature’s vision? Or would that be yet another absurdity- especially since, within this scenario, even the Prosecution did not see fit to charge a Kidnapping?
Absurd? Perhaps. Yet that is a result which might be enabled by the vague and incongruous tenets/wording of the amended laws.
So to wrap this up, what I am asking you if whether such circumstances as I have painted and analyzed are consistent with what the Legislature intended, or envisioned, upon modifying the relevant laws?
I can only assume that the circumstances arose through oversight: that the amendments were intended to rectify some inherent problems with the wordings- or with circumstances given rise to- by the old laws. I suspect, however, that the amendment has generated more new problems than it has solved. Do you agree with me? I would very much appreciate some insight on these points.
If you would be so good as to reply, please don’t forget to explain WHY you saw a need to modify these laws in the first place.
In closing, I want to thank you very much for your time and trouble.
Thank You,
Sincerely, (etc.)
P.S. One Judge in southern Utah defined a detention as occurring “any time the actor takes a minor victim anywhere without parental consent for ANY PERIOD of time.” His definition included no “interference with liberty” at all.
But surely I am just spinning hypotheticals here, you might think. That no Jurisdiction would actually prosecute such a circumstance in such a way. Wrong! And, of course, you cannot count on other people’s sense of fair play in these matters anyway!
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9-05-05
Dear Harold (Brain),
Allow me to refresh your memory about who I am. My name is Royce Burton, and during the spring and summer of 2003 I frequented your establishment, while at-tempting to secure a position with some of the local river companies.
Unfortunately, as you might remember, I ran afoul of the law there, and was subsequently prosecuted to a degree so out of proportion to reason that my life was nearly destroyed, and my freedom nearly eclipsed- for life.
When I say for life, I merely mean that your illustrious County Attorney, Eric Lind, in a diseased and illegal prosecution, sought for me a life sentence, on what should have been prosecuted as a misdemeanor to begin with.
I do not mean to here bore you with every detail, though if you are interested enough, I would certainly be willing to tell you more. Nor do I mean to spend all this time castigating Eric Lind, though I truly believe that there is something very deeply disturbed about him.
What I do endeavor to do here is to let you know that I have survived this experience, at the loss of almost $50,000 and two-and-a-half years of my life. I am telling you this for a couple reasons. One is that you expressed an interest, the last time I saw you, in how things were progressing. Unfortunately, then, I had neither the time nor the liberty to tell you very much about it. Another reason is that I believe that responsible citizens of your community need to be made aware of the goings-on of people in such positions of power there.
But first, let me tell you a little about the circumstances of my case- very briefly.
I went into the library to check my e-mails, and a young woman who I had never seen nor heard of before came in and started talking to me. Her name was Corissa Mumford. Perhaps you know her.
She soon thereafter invited me on a hike. As I started to leave the library, though, she seemed to have changed her mind, so I left anyway. Then the young woman ran out of the Library, caught up to me, and asked if she could drive my car. I perceived that this young woman had some sort of a handicap, but that it was slight. And I thought I would let her drive my car. I certainly believed her capable of driving! It sounded like fun.
What ended up happening was that I parked my car at the bottom of the trail-head, and that the young woman immediately touched me in a sexual manner. She was quite aggressive, and we almost went so far as to have sexual relations. But then she evinced some behavior which made me think she was less cognizant of the act than I had thought previously, so I stopped it. It was then that she told me that she had been raped by her father, and also that she loved me (though she had just met me). Those last two things alarmed and concerned me, so I asked her if she’d like to go on that hike after all. I thought I’d be able to ascertain the circumstances of her father’s abuse, so that I could report it if necessary. And I didn’t want to wholesale abandon her, after that confession.
As we started our hike I was in front of Corissa, and she cried out for some assistance, so I returned to her and took her hand. Right after that, along came Kanab’s finest: Mark Fisher. He arrested me for “Child Kidnapping”, and brutally- and unnecessarily- slammed my head down upon the trunk of his car. As he did that, Corissa, who had a moment before defended me to him as “my friend”, changed course, and cried that I had raped her.
Later she repudiated that claim, but she did make other claims then. As a result, I was charged with Forcible Sexual Abuse- a 2nd degree felony. What is interesting about that is that the evidence only supported an A misdemeanor. When I say that, I mean that even conceding every accusation the young lady made, that it would have still been an A misdemeanor.
Later, in discussions with my two expensive Attorneys, Eric Lind all but con-ceded that it was an A misdemeanor to him too- but that, since I lived out of state, he had to charge it at a higher level, to “control” me. Her father, by the way, spent only one week in jail. Isn’t that interesting!?
I was also charged with a b misdemeanor, called Unlawful detention.
Anyway, had Eric Lind merely charged the transgression beyond what it warranted, that would have been bad enough. Instead, he presided over the manufacture of evidence, which was the creation of a scratch upon Corissa’s stomach. They wanted to claim that I had made that scratch. Rest assured, Harold: they made it themselves.
You told me yourself that the manufacturing of evidence by law enforcements personages there is not unheard of. If you think perjury is also manufactured evidence, you’ll like this too:
At the first (aborted) Preliminary Hearing, Eric Lind took myself and my Attorney into a private room, where he crossed his arms and guaranteed that Corissa would testify that she had protested about going with me, and that she was essentially violently kidnapped. Then he told me that if I didn’t give him a plea to a felony, that he would add a new charge, called Aggravated Kidnapping. That was the 1st degree felony, with the minimum mandatory sentence, of which I spoke. He was blackmailing me. Well I did not give the low-life a plea, and so he really did charge it! And Harold- he charged it on the basis of guaranteed perjury. Eric Lind was willing to send me to prison for the rest of my life on a misdemeanor that he had managed to(o)* parlay into a 1st degree felony via manufactured evidence and perjury. That is why I hold him in such contempt. Eric Lind is evil.
After many months of near suicidal depression and incapacitation, I went to another preliminary hearing, with another Attorney.
The Prosecution was claiming two contradictory things then: One was that Corissa was Kidnapped, while kicking and screaming. The other was that she is “mentally incompetent”, and therefore cannot consent-even if she did say she wanted to go. And their standard for the detention element, of the Aggravated Kidnapping”, is merely that I went somewhere with Corissa. Utah law does not define detention, such that even if a common sense definition of it calls for some sort of interference with the liberty of the victim, that to their zeal, my transporting of her was sufficient…. It’s a horrible and incongruous jumble, Harold.
Anyway, at that hearing, Corissa took the stand. And she did not claim to have protested at all. Nor did she make any claim about any scratches!
At that same hearing, Judge Mower threw out all sex- related charges. But do not think that the Aggravated Kidnapping fell away then. For the good judge then imposed a “lesser included” charge, called Kidnapping. He cited the inconsistency of the wording of the Ag. Kid. law, that allows the unlawful detention to be so elevated. In other words: Unlawful Detention can be parlayed upward TO a 1st degree felony despite its inconsistent language, but it cannot be reduced FROM a 1st degree felony for exactly the same reason…. It’s amazing. And it all stemmed from Lind’s utterly diseased zeal – to send me to prison for life- for a misdemeanor!
The Judge affirmed that a detention is the taking of a minor anywhere without parental consent. No requirement for force, threat, or deception was needed. And no interference with any degree of liberty is necessary either. In other words, if you pick up a minor hitch-hiking, you have detained him/her.
I finally took a plea in abeyance to a third degree felony: that, while believing that by any sensible standard of detention, that I was not even guilty of the b misdemeanor lesser included.
I am now bankrupt too. I hope Eric Lind is happy. He can uncross his little arms.
I contacted Cathy Johnson, by the way. But she will not respond. Thanks for telling me about her, in any event.
I would sure like it if you would at least let me know that you have received this missive. And I’d like it even more if you could tell me some people I might interview there in Kanab who have had unethical dealings with the Prosecutor’s office, or with the Law Enforcement forces there, who felt really trod upon via shady behavior.
There’s so much more, but I don’t want to inundate you.
Thank you for your time
Sincerely (etc.)
Note: Harold never did reply. He moved out of Kanab.
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11-10-04
Dear Judge Brewer,
Thank you again, in advance, for your opinions, insights, and advice, about this hypothetical matter. It hope it will inform a very good book, when I am done!
The background “bones’ of this matter are that our protagonist, a 45 year-old out-of-towner, was arrested while in the company of a 15 year- old girl, who is mentally challenged to a degree still very much in debate. The pair had met in the library, and had driven together several hundred yards in the protagonist’s car, which they left behind a water tower. The arresting officer, having been contacted by the Librarian, arrived on the scene to see the couple walking up a hillside, hand in hand, just behind the tower, and summoned them down, whereby the officer- who knew the young woman- arrested the perpetrator for “Child Kidnapping’. That was inapplicable, though, since she was older than 14, so it was dropped. By the end of the day the charge was changed to “Forcible Sexual Abuse”- a 2 Felony- as the young woman had made some sex related charges, which were video-taped by the Police. The Prosecutor later added Unlawful Detention.
The protagonist hired an Attorney, and proceeded to a preliminary hearing. By then the protagonist, having read and considered the laws of Utah, was of the opinion that had everything the young woman said on the video-tape happened exactly as she said it had, that the offense would have been only the “Sexual Abuse of a Minor’, an A misdemeanor. So the protagonist (now our Defendant), proceeded to the preliminary hearing.
There the Prosecutor took the Defendant and his Attorney aside, and said that if they forced the preliminary hearing to go ahead, that they would add a charge called “Aggravated Kidnapping”, a 1 Felony- with a minimum mandatory prison sentence. Furthermore, in defense of the new charge, the Prosecutor guaranteed the exact words that the young lady would use in her testimony that day, to show that she had protested the transportation. So the preliminary hearing was called off that day, the Defendant demoralized.
But it came to be the Defendant’s opinion, again after much studying and consideration, that the Aggravated Kidnapping law could not be upheld- that it was a poorly considered law that could technically allow a b misdemeanor, committed simultaneously with an “intent’ to engage in a consensual A misdemeanor (Sexual Abuse of a Minor) to be parlayed into a 1 felony. The outraged Defendant decided to fight.
Defendant fired his Attorney, and hired a new one. Nine months after his arrest, our fictitious Defendant went to the preliminary hearing, still believing that he did not have to contradict anything the young lady had said on the video, and also believing that even if she did testify in the fashion that the Prosecutor had threatened, that he would be able to convince the judge that it had not happened: that it neither fit the circumstances nor her own exclamatory pattern, which the Defendant had observed three times already on this “hike”. (I should mention that the man and the girl were strangers till that day.)
Amazingly, at the hearing, the young lady did not claim to have registered this protest at all, but rather to have silently thought it. She also went on to testify that the whole outing- the “hike”- had been her idea, and that she felt “free to leave at any time”.
Then in his testimony, the Arresting Officer actually confirmed that she had defended the Defendant to him as her “friend”- just before he made the arrest! (Yet he slammed our docile Defendant’s head against his car during the arrest, in this hypothetical scenario).
The result was that the Judge seemed to have been of one mind with the Defendant (who did not testify), apparently agreeing with Defense’s arguments that her own claims of sexual improprieties did not run afoul of the principles of “Consent” under Utah law. Thus, the good judge threw out the Forcible Sexual Abuse charge. Our hypothetical protagonist considered this very good news, of course, especially since the Judge could have lowered that charge to the A misdemeanor (while still keeping the Aggravated Kidnapping) In addition, he threw out the Aggravated Kidnapping charge, and dismissed the Unlawful Detention. Hooray! But then- inexplicably, (to our hypothetical Defendant, at least)- he announced that he was looking for “lesser included”s, and ultimately alighted upon the charge of Kidnapping- with which our fictitious Defendant is now faced.
Fortunately, during all this, the judge threw up his hands and asked- in reference to the young lady’s testimony- “Am I supposed to listen to all of this and believe that she’s ‘mentally incompetent’?” (“Mental incompetence”, of course, as I’m sure you know, would invalidate her apparent consent to have accompanied the Defendant)
Then, unfortunately, the judge- in response to the Defense Attorney’s prodding- defined a detention as the taking anywhere of a minor without parental consent. Hearing this, it was the Defendant’s opinion that the Judge only spun this definition off the top of his head, without having time to adequately consider its implications. Furthermore, he asserts, it isn’t a definition at all- but an example.
Nonetheless, the Defendant was elated, because to his mind, the young lady, with her testimony, together with the judge’s apparent “ruling” that she was not mentally in-competent, had assured him of acquittal. And he was convinced that, once again, he would not have to contradict a thing she had said in order to convince the Judge that he was innocent. Thirdly, he observed that the more time that went by the closer her testimony agreed with his, (his hunch is that the counselor she works closely with is more interested in helping her to admit the truth and deal with it, than in helping her to perpetuate and improve upon lies.)
She did not admit that she requested of Defendant that she be allowed to drive his car, but our hero believes she will. After all, Defense asked her about this at prelim, so her counselor will no doubt be prodding her about it. Thus Defendant is now reasonably certain that she will ultimately make no claim for any use of force, threat of force, deception, restraint, pretended authority, or for of the slightest abridgement of her liberty to make any physical motion! (Even her sexual claims did not include such a claim Ha!)
Thus, the mock Defendant is not afraid to go to trial. Defendant’s Attorney is not so fearless, though, because Prosecution is amassing documentation and testimony to “prove” that the young lady is in fact a much lower-functioning person than she had appeared- to the Judge in court, and to the Defendant’s eyes as well. In response, Defense is amassing arguments designed to persuade the Judge that it is his idea of what constitutes a “detention” that should change- and not his judgment concerning her competence. One of Defense’s arguments, of course, will be that it is absurd to rule that the girl is competent to consent to sexual conduct but is not competent to consent to having been with the Defendant in the first place. The Baker’s dozen arguments against this definition I will present soon, but only in very foreshortened forms, as I know you are very busy.
Having come this far, then, can you offer some opinions and insights regarding some of the stickiest points of this hypothetical dilemma. Specifically:
Would you think it likely that a judge, having said that, might decide that this young lady is in fact mentally incompetent after all, and that her consent is therefore in-valid? If so, what of the fact that a primary reason the Defendant elected to go before him for a bench trial was that the Judge seemed to have already made this judgment? (The other reason being his already demonstrated moral courage).
Even if the Judge changed his mind about this point, would you think he would decide that the mens rea is that the Defendant couldn’t have known that she was incompetent)- since he (the judge) didn’t either? And is there Strict Liability on this point?
The Defendant, having read and considered the Utah statutes, is of the opinion that, while he has strict liability concerning her age on a sex charge, he does not have this liability on a Kidnapping charge. Do you agree with this reading? If so, do you agree that section 1d of the Kidnapping statute descends to an Unlawful detention if the element of age is removed? And does the standard of detention then elevate for the lesser charge?
Do you agree that the Aggravated Kidnapping law is atrocious? Do you believe it would survive higher scrutiny? (It is still relevant in our hypothetical Defendant’s case, because without it, this case might have been resolved long since, for different reasons…)
Is it alright for the judge to raise a component charge like that-as he apparently raised Unlawful detention to Kidnapping? Or was that an error, especially if he was looking for “lesser included”s at the time? (This enabled by that terrible law again…)
Defense maintains that even if she is incompetent, and that even if Defendant should have known that , and that even if he should have known her age too, that he is still not guilty because he never detained her. But a successful defense here could require the changing of the hypothetical Judge’s definition. What do you think a detention is?
Another problem arises with the issue of intent. For if the Judge’s definition holds, then does that mean that intent to Kidnap can be established just by knowing that he is deliberately transporting this young woman- and apparently consensually?
What do you think of a Prosecution that has tried to have it both ways: that opening the car door was both an act of “enticement” (to sexual activity), and a mandate?
On that note, do you find the following “bare bones” arguments against the Judge’s definition of “Detention” to be compelling/ persuasive/ convincing? If not, is it your opinion that his definition would survive a higher court’s scrutiny?
1) Because common usage is against it. A ride is not a detention.
2) Because both legal and common dictionary definitions are against it. These equate detention with some sort of false imprisonment, or with a restriction of liberty or freedom of movement.
3) Because the statutes of other states that define detention maintain the same.
4) Because (unrelated) statutes in Utah which deal with detentions made by Librarians or Police Officer’s imply that a detention is a form of imprisonment.
5) Because Utah’s (meager) case law on the subject also implies that some degree of interference with freedom of movement is required.
6) Because sections a, b, and c of the Kidnapping statute don’t imply that a transportation is sufficient, so his definition becomes section-specific, within a larger statute- all sections of which call for detention (or restraint).
7) Because surely the standard for a detention in a Kidnapping cannot be milder than the standard required for its b misdemeanor lesser included: “Unlawful detention’- which also calls for a detention (or a restraint) but which has no age stipulation.
Because such a definition gives rise to absurd situations, such as the consent dilemma I outlined earlier, and also by making the picking up of an under-age hitch-hiker a potential felony. This definition enables arbitrary enforcement.
9) Because his definition makes 1d of the Kidnapping statute essentially the same as the Child idnapping statute, whereas the Legislature intended more freedom for 14-18 year olds. Mental capacity is already built in to the statute.
10) Argument 10 is enhanced by the fact that the Child Kidnapping statute enlists the “transporting” of a child as one of its potential elements. That the Kidnap- ping statute does not call for transport as being sufficient implies that it is not.
11) Because his definition makes a partial tautology out of the applicable section of the statute, as in “Taking a minor anywhere without consent of the parents and without consent of the parents”. His definition cannot be sensibly substituted to all references to detention- thus it is not a definition, but an example.
12) Because surely that Aggravated kidnapping law is not so poor as to also let the detention half of the equation be consensual too- or at least seem consensual to both the players. That means the 1F offense can be consensual all the way. Surely the Legislature was envisioning something forceful somewhere here…
13) Because his definition of detention bears no relationship to restraint. Restraint is not defined in any age-specific, or consent-status related way.
Oh yes: Would you think that if a Judge were deliberately expanding the definition of detention so as to provide protection for a mentally challenged person that is not apparently afforded by any other statute, that he might as easily expand the definition of “acting in a way which might protect the victim from imminent bodily harm” to include acting in a way which might protect such a victim from harm which may be ongoing, but which is not imminent? For example if she admitted to familial sexual abuse, and our hero acted in a way to coax the facts out of her, so as to report the abuse, would that fact stir you, as a Judge, to grant extra latitude to the hypothetical Defendant, for a detention?
I thank you heartily for your time and consideration, and if this indeed becomes the book I envision, I will include you in my Acknowledgements- if that agrees with you.
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The Honorable Jon Huntsman, Jr.
(etc.) 9-14-07
Re: Aggravated Kidnapping Law
Sir:
I realize that your office does not carry with it the prerogative of nullifying laws, but perhaps in recognizing a particularly unjust one you can set certain forces in motion with an eye toward amending it.
Before I even tell you which law I am referring to I want to make it clear that my appeal is not motivated with any particular person in mind: not by any motive to gain justice for any specific person affected by this law. I say that because with that in mind perhaps you will file this letter differently than you otherwise might. It is not an appeal for clemency, in other words- on anybody’s behalf. I am writing, rather, with respect to a law that I was charged with having broken, but which, with all charges against me having been dropped, still concerns me in its potential applications.
That law is Utah’s Aggravated Kidnapping Law (Title 76, Chapter 5, Part 302). That statute was amended in 2001, under the sponsorship of Glenn L. Way, and then again more recently. If you would be so good as to peruse that statute, I would like to draw your attention to the following concerns, which I think constitute flaws in its construction:
1) The kidnapping aspect can be satisfied by either an actual kidnapping or by an unlawful detention. In essence, then, an aggravated kidnapping can be merely an aggravated unlawful detention. Moreover, the unlawful detention statute states that the unlawful detention is defined by circumstances that fall short of a kidnapping. In other words, you can have an aggravated kidnapping without even having a kidnapping.
2) The aggravating element can be constructed from an A misdemeanor, since the Sexual Abuse of a Minor falls within the purlieu of Title 76, Chapter 5, Part 4. But since the statute also allows the aggravating element to be satisfied by the “attempt” to commit any of these violations, then the aggravating element can even be satisfied by the b misdemeanor Attempted Sexual Abuse of a Minor.
(Indeed, the unlawful detention can be merely attempted too: that’s an infraction!)
Thus the Aggravated Kidnapping law can be run afoul of by a b misdemeanor committed during the course of another b misdemeanor. That strikes me as severe.
In addition:
3) The standards of consent conflict across both sides of that equation: that is to say that within all the sexual abuse statutes in Utah the standards for consent has to do with what the actor “knew”- excepting for the element of the victim’s age, on which point there is strict liability…But with respect to the unlawful detention and kidnapping laws there is not strict liability with regards to the victim’s age- and there is strict liability with respect to mental incompetence.
4) Whereas prior to the 2001 amendment a detention was statutorily defined so as to require some sort of interference with liberty, that wording was eliminated in 2001, and no new definition was substituted in its place.
(See www.le.state.ut.us/~2001/bills/hbillenr/HB0240.htm)
Thus, not only can a violation of the Aggravated Kidnapping law be construed from two b misdemeanors, but from two b misdemeanors in which inhere conflicting standards of consent.
Furthermore, that violation can now be construed using an extremely light standard of detention, as you shall see.
In order to bring this discussion down from a level of theory, I will draw from my own case now. The particulars of it are important only insofar as they can be used to illustrate the possible outcomes of such a muddled law.
In Kane County, in 2003, Prosecution charged me with unlawful Detention and Forcible Sexual Abuse, on the basis of their claim that my victim was “mentally incompetent”. In tandem then, they built an Aggravated Kidnapping charge from those two statutes.
At the preliminary hearing, however, the judge scoffed at the idea that the victim was mentally incompetent, and so threw out the Forcible Sexual Abuse. With that plank missing, the Aggravated Kidnapping charge came tumbling down as well. Unfortunately that statute only tumbled as far as the Kidnapping charge that the judge substituted for it- which was in excess of the unlawful detention that the Prosecutor had charged!
What is more, the victim, who testified that day, asserted both that our outing was her idea and that she was free to leave at any time.
Nevertheless, the judge then defined detention as “going anywhere with someone under the age of 18 without parental consent”. Thus no interference with liberty was required in order to have run afoul of the kidnapping statute, and his definition also skirted issues of consent. I suspect he would not have felt so free to do that had an actual definition been in place.
So an Aggravated Kidnapping violation can be construed from two b misdemeanors, not require the least bit of detention or restraint, and ignore the consent issue- even where the victim- older than the statutorily codified age of 14- testifies that she has given consent. Since Aggravated Kidnapping is a very serious crime- and punishable by a minimum mandatory prison sentence, that strikes me as enormously out of proportion to the severity of the offense.
Moreover- again using my case, but with application to any similar case- even had the judge reduced the forcible sexual abuse charge to an A misdemeanor Sexual Abuse charge, Prosecution could still have built the Aggravated Kidnapping charge from it- and benefited the enormously lenient standard of detention then in place. The fact that that didn’t happen is of little consequence here too, for remember that the Prosecution could have re-filed, using that charge.
It seems to me that it was only because of this poorly considered law that the judge was able to level a kidnapping charge at me… Had the statute not permitted an unlawful detention to be parlayed into an aggravated kidnapping then the judge would not have been in the position of scrolling down from such draconian heights to arrive at the lesser charge of kidnapping. I further question whether that can be regarded as fair.
Finally there’s this, culled from 76-1-104: Purposes and principles of construction:
The provisions of this code shall be construed in accordance with these general purposes:
… (2) Define adequately the conduct and mental state which constitute each offense and safeguard conduct that is without fault from condemnation as criminal.
(3) Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition or differences in rehabilitation possibilities among individual offenders….
I ask you how the un-defining of a critical definition has been consistent with this self-assigned burden the Legislature has assumed? In my view the 2001 amendment was an abrogation of what they have assumed- and asserted- as their responsibility. Then, to make matters worse, when the legislature amended that law again, in 2007, they still did not correct it.
In closing, one might wonder if all this was consistent with the intention of the Utah Legislature. My hope is that this appeal persuades you that this law is ill-considered, and that as a result you will propose a better law or motivate the people who can. Penalties should be proportional to the offense and important definitions should be in place.
I hope this paints a picture of the absurdities of the Aggravated Kidnap law.
Thank you for considering my views on this topic.
Sincerely, (etc.)
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