Suppose I steal a car, and there's a baby in the back seat. Did I just kidnap the baby?
In colorado, it appears that the kidnapping statutes do not apply if the act is not "knowing" or if the perpetrator lacks intent.
Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping:
(a) Forcibly seizes and carries any person from one place to another; or
(b) Entices or persuades any person to go from one place to another; or
(c) Imprisons or forcibly secretes any person.
- Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping.
2. Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping.
- Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment.
As @ohwilleke pointed out in this answer, this means that as soon as the hypothetical car thief becomes aware that the child is in the car and doesn't then act to return the child to their parents, it becomes second-degree kidnapping. (It's also possible that CO case law has interpreted the statutes differently than I'm interpreting them here, but the plain language seems to require the actual intent to take and/or confine a person illicitly.)
In some jurisdictions, it would not be kidnapping until the offender knows that the baby was in the car. It would depend on the exact language of the criminal kidnapping statute in that jurisdiction as interpreted by case law.
For example, if the car thief stole the car and then abandoned the car, without ever knowing that the baby was in it, in some jurisdictions, this would not be kidnapping, because the offender would lack the knowledge that the crime was committed.
But, if after stealing the car, the offender then learns that the baby is there, and doesn't immediately take action to return the baby to its parents, even if this as a practical matter means turning himself in for the car theft offense, even those jurisdictions that require knowledge that a person has been kidnapped would make the person guilty of kidnapping.
Subtle differences in statutory language like this often don't necessarily have a lot of rhyme or reason to them in the sense of being considered policy decisions, and depend to a great extent on the statutory drafting style of the original legislators that wrote the criminal statute in question.
Yes, in new-south-wales
The New South Wales Crimes Act 1900 says:
(1) Basic offence A person who takes or detains a person, without the person's consent--
(a1) with the intention of committing a serious indictable offence, or
is liable to imprisonment for 14 years.
Stealing a car is a “serious indictable offence” so this is kidnapping.
There are two kindred offences In england-and-wales; kidnap and child abduction.
Kidnap is contrary to common law and defined by the House of Lords as:
- the taking or carrying away of one person by another;
- by force or by fraud;
- without the consent of the person so taken; and
- without lawful excuse
Although kidnap is a viable and legitimate charge in the OP's scenario, the statutory offence at s.2 of the Child Abduction Act 1984 is more appropriate in these particular circumstances:
s.2(1) ... a person ... commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen—
(a) so as to remove him from the lawful control of any person having lawful control of the child; or
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.
(Non-relevant detail redacted for ease of reading)
Here is a real-life example of a successful conviction under this legislation:
Two men who stole a mother’s Range Rover that had her three young children inside have been ... found guilty of child abduction (plus a host of other offences)