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.