Flaws in the Laws – Part III: 2nd Degree Kidnapping

“He got off on a technicality.” This is a quip that drives me crazy whenever someone walks away from a courtroom in which the person otherwise should have been found guilty. Just what is a technicality?

A technicality can be the absence of a comma, a misplaced comma, or any other piece of punctuation that makes a statute mean something different from what legislators intended. It can be that law enforcement or prosecutors violated a fundamental constitutional right. Or, it can mean that a procedural error existed; such as not following a specific provision of the Rules of Evidence, the Rules or Criminal Procedure, or any other aspect of the judicial system. This essay is going to focus on another “Flaw in the Law”, the plain language of a statute as interpreted by a court.

This issue was the object of an article in the Justice Reform Consortium newsletter of a year ago. During the 2018 legislative session, Rep. Mary Wolfe (@RepMaryWolfe) tweeted that “SF 2230 enhances the penalty for kidnapping a minor from Class “C” (10 years) to Class “B” (25 years) UNLESS kidnapper is a parent – not a parent of the kidnapped minor, just a parent – whose sole purpose is to assume custody of the minor – not legal custody, just custody.  After explaining this to the members of the Iowa House of Representatives, the bill passed 82-16.”  Words do matter.  See for yourself.

The Iowa Code now contains the following language:

710.3 Kidnapping in the second degree.

  1. Kidnapping where the purpose is to hold the victim for ransom, where the kidnapper is armed with a dangerous weapon, or where the victim is under eighteen years of age other than a kidnapping by a parent or legal guardian whose sole purpose of the kidnapping is to assume custody of a victim under eighteen years of age, is kidnapping in the second degree. (Emphasis added.)

That word “a” is going to come back and haunt someone. A smart attorney is going to get a defendant off on a technicality someday when the kidnapper is “a” parent (or “a” legal guardian), but not the parent of the child kidnapped.

You may, or a prosecutor may, argue ‘til the sun goes down that the Iowa Legislature didn’t mean what it enacted, but that it meant the exception applied to “the” parent of “the” child. It shouldn’t make any difference what the legislators meant, the Court is going to determine the outcome on what the statute says in viewing the language on statutory construction. Based on a 2004 Iowa Supreme Court case, Auen v. Alcoholic Beverages Div., 679 NW 2d 586 (Iowa 2004), “[t]he goal of statutory construction is to determine legislative intent.” The Court determines “legislative intent from the words chosen by the legislature, not what it should or might have said.. . . . Under the guise of construction, an interpreting body may not extend, enlarge or otherwise change the meaning of a statute.” Auen at 590 (Citations omitted.)

Representatives Mary Lynn Wolfe (D-Clinton) and Rick Olson (D-Des Moines) attempted to amend the bill in order to make it more precise in its meaning. However, the “technicality” remained in the bill because of a powerful virtue – control! Many technicalities are the result of a political party’s control over a piece of legislation. Rep. Olson’s amendment would have fixed the bill’s defect, and would have included a limited number of specified family members (besides “the child’s” parent) that would have been exempted from the wide scope of the bill’s terms.  As he mentioned during debate: “This is a common sense amendment.”

Nonetheless, the floor manager of the bill, Rep. Ross Paustian (R- Walcott), said that Rep. Olson’s amendment “waters down the bill”.  Actually, refusal to amend the senate file opened up the flood gates.

Rep. Paustian’s opening statement appeared to be a word-for-word description prepared by the Iowa County Attorneys Association (ICAA).  It was the same explanation heard during a subcommittee meeting.

It’s bad enough that 82 representatives would cast a vote in support of this defective bill, but all 50 senators voted to pass it.  Does no one in the Senate pay attention to the “plain language” of legislation?  We’ll be honest.  We didn’t recognize the serious flaw until we noticed Rep. Mary Wolfe’s tweet.

How can a legislator vote in favor of a bill that is obviously flawed?  Were legislators not listening to the debate?  Surely, it was brought up in caucus.  How can an association made up of lawyers, the Iowa County Attorneys Association, insist that the bill NOT be modified, even though it cannot be enforced as written?

Someday, a person who kidnaps a child, “whose sole purpose of the kidnapping is to assume custody of” the child, will walk away from a courtroom because the person is “a” parent, although not “the” parent of the child who was kidnapped, and people will gasp at the thought of the monster walking the streets, freely. The media will tell you that he was found “not guilty” because of a technicality; the legislators will blame the courts; the ICAA will deny it had anything to do with it, but will assure everyone that it can fix it; and you might say, “I read about that once, but can’t remember where.”

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