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Victims of “Virtual Kidnapping”
Virtual kidnapping is a scam that has become widespread only recently. There are no direct state or federal laws that list this as a separate crime, however many other crimes may cover an act of virtual kidnapping.
“Virtual Kidnapping” - Virtual kidnapping is an extortion scheme where the scammer contacts family, friends, or the workplace of a person they claim to have kidnapped, holding them for ransom, but in reality that person has not been kidnapped.
“Extortion” - Extortion is a crime that uses force or the threat of force to unlawfully obtain money, property, or other valuable from a victim.
“Kidnapping” - Kidnapping is a crime involving the abduction or illegal imprisonment of another person, holding them against their will.
Virtual Kidnapping Laws
#1.) Wire Fraud
18 U.S. Code § 1343 - Fraud by wire, radio, or television
Federal criminal law makes any fraud or scheme conducted over a wire, radio, television, or computer an illegal act. Wire fraud consists of four elements, all of which need to have occured in order to be a crime:
- The intentional and voluntary act to defraud another out of money or something else of value
- With the intent to defraud
- Reasonably foreseen that interstate wire or electronic communications were utilized
- Through the use of interstate wire communications
“Intentional and Voluntary Acts”
An intentional act is a legal requirement for the necessary state of mind for a crime to be committed. For crimes that require an intentional act, the person must have given some level of thought to their actions and know or should know the consequences of their actions.
Voluntary is another legal requirement that needs to be met, where the person committing a crime is doing it of their own free will, without any outside force making them do it. For example, if a person is threatened to commit a crime, otherwise someone else will harm their family, the voluntary element of the crime may not be met.
“Wire Communications”
Wire fraud was created as a separate fraud crime in response to the development of the telegraph in the early 19th century. It was developed to mirror “mail fraud,” which was a crime utilizing the postal service. (The postal service was the most common form of interstate communication prior to the advent of the telegraph system). As technology has advanced, the use of new technology has been applied to the outdated term “wire fraud.” Telephones, fax machines, cell phones, text messaging, and the internet communications are all technology subject to the laws of wire fraud.
Virtual kidnapping almost always uses cell phone and internet communications to occur. Occasionally regular mail is used, with ransoms sent by traditional postal service. However, typically the perpetrators of virtual kidnapping will call their victims, send text messages, or use email/internet posting to commit their crimes.
#2.) Money Laundering
18 U.S. Code § 1956 - Laundering of monetary instruments
Money laundering is the hiding of illegally obtained money or property, so that such valuables can be transferred and used as if it was legally obtained. Typically, money laundering accompanies another crime, or in the instance of virtual kidnapping, is the way criminals try to hide the money they get from virtual kidnapping scams.
For money laundering to be a crime, it must meet the following elements:
- Conducting (or attempting to conduct) a financial transaction,
- Knowing the money was obtained from an unlawful activity
- Involving a specific act within the United States or Outside the United States
- And the property must have been illegally obtained from another crime.
“Illegally Obtained from Another Crime”
Money laundering can never be committed without another crime. By definition, money laundering requires money or property to have been obtained illegally in the first place. For virtual kidnapping, any ransom money received by committing a fraudulent kidnapping and extortion of money will oftentimes be converted in an illegal way so as to keep the identity of the criminals hidden. The money may be trafficked outside of the United States or possibly through illegal operations within the United States to conceal the source of the money.
United States Federal Extortion Laws
Virtual Kidnapping may be a more modern crime, but it is based on a very old crime: Extortion. Extortion is the use or threat of violence, or any other type of harm, unless a victim submits something of value. The United States criminalizes extortion under 18 U.S. Code Chapter 41. The elements for extortion are the following:
Elements of Extortion
- The use of a threat of force, violence, fear, or false pretenses,
- Violating any law of the United States
- To obtain another's money, property, or otherwise something of value
“False Pretenses”
Virtual kidnapping commonly uses false pretenses against their victims in order to complete their extortion. False pretenses are an intentional statement made to commit fraud against a victim. False pretenses are really just a lie told with a purpose. For example, if a victim is called and told their family is being held hostage and will be murdered if money is not sent and truthfully, the family is fine and not being held captive, then the caller has completed the act of using a threat under false pretenses.
"Scheme to Defraud" in New York
The State of New York has a state specific crime, criminalizing a “scheme to defraud.” Section 190.60 of the New York State Penal Code defines this violation, which is a systematic course of conduct with the intent to defraud more than one more person.
The elements of a scheme to defraud are as follows:
- With intent to defraud by false pretenses
- More than one individual
- In a systematic, ongoing course of conduct
- To illegally obtain the property from one or more such persons.
Although this law may not apply to a single act of virtual kidnapping, oftentimes virtual kidnappers create a system of committing virtual kidnapping against many other people, over a period of time. They may target specific groups or specific families, particularly if they are vulnerable to such frauds.
For example, virtual kidnapping often targets immigrant communities who may not always want to go to police authorities to report crimes against them. Such targeted acts violate the law against schemes to defraud.
Penalties for Virtual Kidnapping and Extortion
Federal violations of extortion can result in up to twenty years in prison. The range for prison can vary greatly, depending on the type of threat that is made.
For example, less severe penalties are possible if the extortion uses non-violent threats. Threatening to expose a lie, to ruin someone’s reputation, or to harass a victim are lesser penalized versions of extortion. Much more severe prison sentences are much more likely if there is a threat or use of physical violence against the victim.
The state of New York qualifies extortion as either a B level felony or C level felony. The penalty can range from one year in prison up to twenty-five years in prison, depending on factors such as the amount of money extorted or whether the victim faced violent or non-violent threats.
The state of New York does not recognize virtual kidnapping as a separate offense, instead prosecuting those cases under extortion and fraud crimes.
Penalties for Wire Fraud
Federal wire fraud charges are serious and can come with significant penalties. Wire fraud is punishable by up to twenty years in prison, with certain circumstances authorizing a judge to give up to thirty years in prison. Often, courts will order restitution to victims, requiring an offender to pay back and money they illegally obtained. On top of this, offenders face various fines and financial penalties imposed by the court. In certain instances, where a bank or other financial institution has been involved, Federal courts have imposed fines up to $1,000,000 for each offense.
Penalties for Schemes to Defraud
The state of New York considers a violation against schemes to defraud as either an A level misdemeanor or an E level felony. A scheme to defraud in the second degree is an A level misdemeanor if the scheme is committed against less than ten victims, the scheme was for less than $1,000 per victim, and it was not committed against a vulnerable elderly person. For this crime, the penalty may be up to 364 days in jail and up to a $1,000 fine.
If the scheme does involve more than ten people, is for more than $1,000 per victim, or involves a vulnerable elderly person, the charge can be upgraded to an E level felony. As an E level felony, the penalty may be up to four years in prison and a fine of up to $5,000.
United States v. Yanette Patino (2018)
A recent case involving virtual kidnapping occurred recently, based in Mexico but victimizing families in Texas, California, and Idaho. Yanette Patino participated in the scam along with co-conspirators in Mexico.
The virtual kidnapping scheme was conducted by identifying Mexican immigrants located in the United States who still had young children living in Mexico. The victims would be called with a gasping voice saying “mom and dad.”
Thinking it could be their child, the victims would say their child’s name, which would allow the criminals to use that name and say their child was being held hostage. Victims were told to stay on the line and drive to banks to take out cash or to wire money to international accounts.
Sentencing: Yanette Patino served as a point person to pick up cash dropped off at various locations, to complete the virtual kidnapping. She was charged with ten separate crimes, including conspiracy to commit wire fraud, eight counts of wire fraud, and one count of money laundering. She was sentenced to 88 months in a Federal prison, with not less than five months of supervision after her release.
Virtual Kidnapping Civil Protections
Fraud, extortion, and other crimes involving virtual kidnapping are often focused in criminal law. These offenses are typically investigated by police authorities, with the intention of bringing criminal charges against those that commit virtual kidnapping offenses. While important for victims of virtual kidnapping, criminal law is not the only way for victims to protect themselves.
Civil lawsuits can also be used in certain instances against those that commit virtual kidnapping. These lawsuits may seek monetary or injunctive relief for victims. Obviously, victims may seek to get back any money lost due to a virtual kidnapping scam. Less obviously, victims may also seek monetary damages for emotional, psychological, or physical harm they suffered.
Often, victims of virtual kidnapping face extreme stress and trauma which may turn into psychological or even physical health problems. These victims, with documented losses and damage to their health, may seek to sue for damages, just the same as being involved in a car accident or other injury.
Likewise, victims of virtual kidnapping may also seek injunctive relief, which is a court order granting protections against those that harm them. For example, if virtual kidnappers constantly contact a family, harassing and threatening them, it may be a basis for a court to order them to stop contacting family members or otherwise harass and intimidate them.
Protecting You and Your Family From Virtual Kidnapping
Knowing how to identify the common methods of virtual kidnappers and having a plan of action is the best way to prepare you and your family. These steps may help prevent you or your family from becoming victims of virtual kidnapping, or if you already have been victimized, to understand ways to not be victimized a second time.
- Contact the alleged victim. Immediately reach out to the family member claimed to be the victim of the kidnapping. If you are able to make contact with them and confirm they are ok, you can end any further contact with the scammers.
- Ensure family members have a way to communicate. Reinforce to your family members, especially teenagers and younger adults, to try to always be available for contact. Virtual kidnapping works best when victims cannot contact other family members and panic into sending money.
- Keep virtual kidnappers talking. The longer you can keep them on the phone, the more time to confirm an alleged kidnapped family member is safe.
- Report any suspicious calls. If any phone call ever makes you feel uncomfortable, harassed, or threatened, it is important to document the call and report it to authorities. If you are afraid to contact the authorities, contact a legal professional to consult with to make sure your rights are protected.
While it is important to screen suspicious calls and it may be necessary to disregard obvious attempts to scam or steal from you, it is very important that you immediately contact law enforcement if you have any reason to believe a real kidnapping or other violent crime has happened to one of your family members.
Virtual Kidnapping Victim’s Rights
Victims of virtual kidnapping face an extremely stressful and traumatic experience. Having the fear of a loved one being harmed and held for ransom can have long lasting financial, emotional, and physical effects. Naturally, being a victim of virtual kidnapping can make you feel you cannot trust others and make it difficult to seek help. It is for these very reasons that it is very important that you know your rights and have a trustworthy representative for you and your family.
If you have been victimized by virtual kidnapping, it is important to act quickly to ensure your rights are protected and preserved. Many times, it may be difficult to track offenders of virtual kidnapping and bring them to justice. Likewise, for a civil lawsuit, there are time restrictions on when you can bring a lawsuit. Consulting with a legal professional can ensure that you preserve these rights and that offenders are brought to justice.
It is also important to quickly seek help, as many times those that commit virtual kidnapping will victimize other people, especially in your community. A legal professional with the experience of working on these cases can not only help you protect your rights, but potentially save others from having the same thing done to them.
Legal Consults and Retaining an Attorney
Our office prides itself on protecting the rights of those victimized by virtual kidnapping. A consultation with a legal professional can not protect your rights, but also provide you with the peace of mind knowing someone who has seen these types of cases is working on your file. Our office has helped many individuals who have faced similar problems.