Brett M. Rosen, Esq.: Kidnapping vs. Criminal Restraint (False Imprisonment) in New Jersey – Understanding the Critical Differences
Facing charges related to unlawfully holding someone against their will is incredibly serious in New Jersey. Two distinct but sometimes confused charges are Kidnapping (N.J.S.A. 2C:13-1) and Criminal Restraint (N.J.S.A. 2C:13-2). While both involve restricting a person’s liberty, the legal elements, required intent, and potential penalties differ significantly. Brett M. Rosen, Esq. is an experienced New Jersey criminal defense attorney who defends clients against these grave charges throughout the state, including Union County. Understanding the specific charge you face is the first step in building a strong defense.
908-312-0368 & brett@nynjcriminalcivilesq.com
Defining Kidnapping in New Jersey (N.J.S.A. 2C:13-1)
Kidnapping is typically a first-degree crime in New Jersey, making it one of the most serious offenses under state law. It involves unlawfully removing someone a substantial distance or unlawfully confining them for a substantial period with one of the following specific unlawful purposes:
- To hold for ransom or reward, or as a shield or hostage.
- To facilitate the commission of any crime or flight thereafter.
- To inflict bodily injury on or terrorize the victim or another.
- To interfere with the performance of any governmental or political function.
- To permanently deprive a parent, guardian, or other lawful custodian of custody of the victim (often relevant in parental kidnapping cases).
Key Elements of Kidnapping:
- Unlawful Removal OR Unlawful Confinement.
- For a substantial distance or period.
- With a specific unlawful purpose listed in the statute.
Note: Kidnapping may be graded as a second-degree crime if the actor voluntarily releases the victim unharmed and in a safe place prior to apprehension. However, it remains an extremely serious charge subject to severe penalties.
Defining Criminal Restraint in New Jersey (N.J.S.A. 2C:13-2)
Criminal Restraint, often colloquially confused with “False Imprisonment” from other contexts, is typically a third-degree crime in New Jersey. It is a serious offense but generally carries less severe penalties than first-degree kidnapping. A person is guilty of Criminal Restraint if they knowingly:
- Restrain another unlawfully in circumstances exposing the other to a risk of serious bodily injury; OR
- Hold another in a condition of involuntary servitude.
Key Elements of Criminal Restraint:
- Knowingly restraining another person unlawfully.
- AND EITHER circumstances exposing the victim to risk of serious bodily injury OR holding them in involuntary servitude.
Unlike Kidnapping, Criminal Restraint does not require proof of one of the specific unlawful purposes (like ransom, facilitating a crime, etc.). The focus is on the unlawful restraint itself coupled with the risk of serious injury or the condition of involuntary servitude.
Key Differences Summarized: Kidnapping vs. Criminal Restraint
| Feature | Kidnapping (N.J.S.A. 2C:13-1) | Criminal Restraint (N.J.S.A. 2C:13-2) |
| Primary Focus | Removal/Confinement + Specific Unlawful Purpose | Unlawful Restraint + Risk of SBI or Servitude |
| Specific Purpose? | Yes, requires one of the listed purposes. | No, specific kidnapping purposes not required. |
| Typical Degree | First Degree (Very Severe) | Third Degree (Serious) |
| Confinement Level | Often substantial, but depends on purpose. | Focus on restraint + risk/servitude, not duration alone. |
| Penalties | Extremely Severe | Serious, but generally less than 1st Degree Kidnapping |
Potential Penalties
| Penalty Type | Kidnapping (First Degree) | Criminal Restraint (Third Degree) |
| Prison Sentence | 15 – 30 years (potentially up to 25 to life in certain circumstances) | 3 – 5 years |
| Presumption of Imprisonment | Yes | No |
| Fines (Up to) | $200,000 | $15,000 |
| No Early Release Act (NERA) | Yes (Must serve 85% of sentence) | No |
| Parole Supervision for Life | Possible | Unlikely |
| Megan’s Law Registration | Possible (if sexually motivated) | Unlikely |
Potential Defenses to Kidnapping and Criminal Restraint Charges
Building a defense against these charges requires a thorough investigation and understanding of the specific facts and legal elements. Brett M. Rosen, Esq. will explore all possible defenses, which may include:
- Lack of Unlawful Purpose (Kidnapping): Arguing the state cannot prove beyond a reasonable doubt that the confinement or removal was done for one of the specific unlawful purposes required by the kidnapping statute.
- Consent: Demonstrating the alleged victim consented to the movement or confinement (consent must be voluntary and knowing).
- Insufficient Removal/Confinement: Arguing the movement or confinement was not “substantial” enough to meet the legal threshold for kidnapping.
- No Risk of Serious Bodily Injury (Criminal Restraint): Challenging the prosecution’s claim that the circumstances of the restraint exposed the alleged victim to a risk of serious bodily injury.
- No Involuntary Servitude (Criminal Restraint): Disputing the claim that the alleged victim was held in a condition of involuntary servitude.
- Lack of Knowledge (Criminal Restraint): Arguing the defendant did not knowingly restrain the alleged victim unlawfully.
- Mistaken Identity / Alibi: Proving the defendant was not the person who committed the act or was elsewhere at the time.
- Parental Rights (Contextual): In parental kidnapping scenarios, complexities arise regarding custody orders and parental rights, which may form part of the defense.
- Constitutional Violations: Challenging illegal searches, seizures, or interrogations that led to evidence gathering.
- Challenging Witness Credibility: Questioning the reliability or motives of witnesses.
Every case is unique, and some defenses above may not be applicable to your case depending on the facts.
Frequently Asked Questions (FAQ)
Q: What’s the simplest way to explain the difference? A: Kidnapping generally requires taking or holding someone for a specific bad purpose (like ransom, committing another crime, etc.). Criminal Restraint focuses on unlawfully holding someone in a way that risks serious injury or forces them into servitude, without needing those specific kidnapping purposes.
Q: Can moving my child without the other parent’s permission be Kidnapping? A: Yes. If the purpose is to permanently deprive the other parent of custody in violation of law or a court order, it can fall under N.J.S.A. 2C:13-1(d). This is a complex area requiring specific legal advice regarding custody orders.
Q: Can I be charged with both Kidnapping and Criminal Restraint? A: While you can’t typically be convicted of both for the exact same continuous act (due to merger principles), the prosecution might charge related offenses. An attorney can analyze the specific charges and evidence.
Q: What should I do if I’m accused or being investigated for Kidnapping or Criminal Restraint? A: Exercise your right to remain silent. Do not speak to law enforcement without an attorney present. Anything you say can be used against you. Contact Brett M. Rosen, Esq. immediately. These charges require urgent legal intervention.
Contact Brett M. Rosen, Esq. – Experienced New Jersey Defense Attorney
Kidnapping and Criminal Restraint charges carry the potential for devastating, life-altering consequences, including lengthy prison sentences. You need a skilled, aggressive defense attorney on your side from the very beginning. Contact Brett M. Rosen, Esq. today for a confidential consultation to discuss your case.
908-312-0368 & brett@nynjcriminalcivilesq.com
Disclaimer: This information is for educational purposes only and does not constitute legal advice. The laws regarding kidnapping and criminal restraint are complex and carry severe penalties. If you are facing these charges or have questions, you must consult with a qualified New Jersey criminal defense attorney like Brett M. Rosen, Esq. immediately. Do not rely solely on this information. Contacting Brett M. Rosen, Esq. does not create an attorney-client relationship unless a formal agreement is signed. Results are not guaranteed.
Disclosure: Prior results do not guarantee a similar outcome. This testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.