Title 18, United
States Code, Section 1204, enacted
in 1993 (the International Parental
Kidnapping Act, IPKA), makes it an
offense to remove a child who has
been in the United States from the
United States with the intent to obstruct
the lawful exercise of parental rights.
Such an offense is punishable by a
fine under Title 18, imprisonment
for not more than three years, or
both.
The Federal
offense for international cases was
created to augment the already existing
remedies available through State law
in parental abduction cases, including
the use of the UFAP warrant. Parental
abduction is a criminal offense in
all 50 states, the District of Columbia,
Puerto Rico and the Virgin Islands,
and, depending upon the facts, can
be charged as a felony, i.e., subject
the offender to a penalty in excess
of one year incarceration. The state
statutes criminalizing the act may
fall under different titles (e.g.,
kidnapping, interference with custody,
etc.), but by the early to mid-1970s,
most states had removed immunity and
affirmative defenses for parents who
kidnap or abduct their children.
The House
of Representatives, Judiciary Committee,
prepared a report on the statute describing
the summary and purpose of the new
law, its background, the legislative
history, and a section-by-section
analysis. See, International
Parental Kidnapping Crime Act of 1993,
House Report No. 103-390, November
20, 1993. The statute enumerates four
stated purposes to combat the historical
lack of prosecution: (1) by making
this action a federal offense the
United States Government has a direct
basis for requesting extradition with
those countries with which we have
treaties; (2) the threat of federal
criminal sanctions will deter at least
some potential offenders; (3) this
new crime allows the issuance of federal
warrants that will assist United States
diplomatic negotiations with foreign
governments for the return of kidnapped
children; and, (4) enactment of such
stern measures will clarify to other
countries the seriousness with which
the United States regards these cases.
Criminal prosecution
merely addresses the status of the
offender and does not address the
welfare or the return of the child.
Civil efforts regarding the return
of the child, including making an
application under the Hague Convention
on the Civil Aspects of International
Parental Child Abductions through
the Office of Children's Issues at
the Department of State, should be
considered by the left behind parent
in conjunction with or in lieu of
criminal prosecution. Congress specifically
stated that IPKA should not detract
from the operation of the Convention
and that the Convention is the primary
vehicle for the return of children.
By contrast, Congress specifically
anticipated the use of IPKA particularly
in abductions to countries not party
to the Hague Convention.
The federal
or state prosecution of international
abductors depends upon extradition,
and extradition in turn depends upon
the particular treaty in question.
Extradition is not always available
for the offense of parental kidnapping,
whether charged under federal or state
law, because: (1) the United States
does not have extradition treaties
with every country; (2) many countries
with which we do have extradition
treaties will not extradite their
own nationals; and, (3) the facts
of a particular offense may not constitute
an extraditable offense in the requested
country. On the whole, however, in
the minority of cases that warrant
criminal prosecution, extradition
has been a useful means to return
an offender to the United States to
face penalties for unlawful behavior.
As noted,
most state and local jurisdictions
are able to prosecute abduction cases
under state law and seek international
extradition. The use of the federal
statute rests upon a particular federal
interest in the case, including: a
particularly egregious factual scenario;
the use of false identification, including
United States passports or travel
documents; the use of wire or mail
communications; interstate travel
and international travel; as well
as other typically federal interests,
possibly reflected in additional charges.
The decision
to pursue a criminal prosecution must
be made on a case by case basis, mindful
of the effect of the prosecution on
the victims of the crime, the abducted
child and the left-behind parent.
As noted, criminal prosecution may
be counterproductive as to the return
of the child by civil process, and
civil process is indicated when it
is an available and effective means
for the return of the child. However,
criminal prosecution may be particularly
effective to intercept abductions
in process. Specifically, the federal
warrant may be used to: apprehend
an abductor before they leave the
United States; request provisional
arrest upon the abductor's entry to
a foreign country or as they enter
or leave a transit country; and, ground
an Interpol red notice to prevent
entry to a foreign country or expulsion
after entry.
Factors that
bear on bringing criminal charges
in a completed abduction include:
the availability of civil means, including
operation of the Hague Convention,
to return the child; willful refusal
of the abductor to honor valid return
orders under the Hague Convention;
the use of false identification and
travel papers to secrete the abductor
and child; a continuing pattern of
secretion and flight; and, particular
violence or other facts militating
for criminal prosecution. In appropriate
cases, criminal prosecution and extradition
of offenders could proceed with efforts
under the Hague Convention to recover
the child. Abductions which are wrongful
retentions past a period of appropriate
custody should be closely scrutinized
for handling under the Hague Convention.
Investigative
jurisdiction for this statute is vested
in the Federal Bureau of Investigation.
Complaints and referrals for investigation
may also come from state and local
prosecutors, private lawyers, or from
individuals. It is recommended that
U.S. Attorneys in multi-district states
work together to develop a uniform
state-wide approach to avoid marked
differences in referral procedures
and guidelines within the same state.
The investigation
of a parental kidnapping involves
recourse to the civil and family court
files, child and family welfare and
social service agency files, and the
files of the Office of Children's
Issues for a sound determination of
"parental rights," as well
as the typical investigation of the
actual abduction and flight. Other
useful resources include the manuals
published by the American Prosecutors
Research Institute on parental kidnapping,
as well as Department of State publications.
Since its
enactment, IPKA has been used to prosecute
a small number of offenders. It was
challenged in United States v.
Amer, 110 F.3d 873 (2d Cir 1997).
The court upheld Ahmed Amer's conviction
under 18 U.S.C. § 1204. The defendant
had been convicted, after a jury trial,
of violating the statute, and was
sentenced to a term of 24 months imprisonment,
and a one year supervised release
term, with a special condition that
he return the abducted children to
the United States from Egypt. He failed
to return the children and served
an additional year. The children remain
in Egypt.
On appeal,
Amer had challenged the statute on
overbreath and vagueness grounds;
on whether the affirmative defenses
of the Hague Convention on the Civil
Aspects of International Child Abduction
were incorporated into the statute;
and whether the sentencing court properly
imposed, as a condition of supervised
release, that the defendant return
his three children to the United States.
The court
found that since the children were
taken in January and the defendant
was not charged until August, 1995,
there could be no doubt that there
had been a substantial period of time
when the children were retained out
of the United States. The defendant
had claimed that since he returned
the children to the land of the parents'
birth for religious reasons, he should
not be punished. Because this issue
was not raised at trial, the court
determined it was forfeited. It further
concluded that IPKA did not violate
the Free Exercise Clause because it
punished parental kidnappings solely
for the harm they cause.
The defendant
further argued that the Hague Convention
defenses were incorporated into the
statute. However, the statute provides
three affirmative defenses and the
court determined these were the only
ones available to a defendant facing
an IPKA prosecution. The court also
found that the special condition of
returning the children served to deter
the defendant both from committing
the offense of unlawful retention
of the children in Egypt after his
release from incarceration, and from
attempting to kidnap the children
again after they are returned to the
United States.
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