6.3: Child Abduction

The crime of child abduction is defined in section 277 of the California Penal Code.

(a) “Child” means a person under the age of 18 years.

(b) “Court order” or “custody order” means a custody determination decree, judgment, or order issued by a court of competent jurisdiction, whether permanent or temporary, initial or modified, that affects the custody or visitation of a child, issued in the context of a custody proceeding. An order, once made, shall continue in effect until it expires, is modified, is rescinded, or terminates by operation of law.

(c) “Custody proceeding” means a proceeding in which a custody determination is an issue, including, but not limited to, an action for dissolution or separation, dependency, guardianship, termination of parental rights, adoption, or paternity.

(d) “Lawful custodian” means a person, guardian, or public agency having a right to custody of a child.

(e) A “right to custody” means the right to the physical care, custody, and control of a child pursuant to a custody order as defined in subdivision (b) or, in the absence of a court order, by operation of law, or pursuant to the Uniform Parentage Act contained in Part 3 (commencing with Section 7600) of Division 12 of the Family Code. Whenever a public agency takes protective custody or jurisdiction of the care, custody, control, or conduct of a child by statutory authority or court order, that agency is a lawful custodian of the child and has a right to physical custody of the child. In any subsequent placement of the child, the public agency continues to be a lawful custodian with a right to physical custody of the child until the public agency’s right of custody is terminated by an order of a court of competent jurisdiction or by operation of law.

(f) In the absence of a court order to the contrary, a parent loses his or her right to custody of the child to the other parent if the parent having the right to custody is dead, is unable or refuses to take the custody, or has abandoned his or her family. A natural parent whose parental rights have been terminated by court order is no longer a lawful custodian and no longer has a right to physical custody.

“Keeps” or “withholds” means retains physical possession of a child whether or not the child resists or objects.

“Visitation” means the time for access to the child allotted to any person by court order.

“Person” includes, but is not limited to, a parent or an agent of a parent.

“Domestic violence” means domestic violence as defined in Section 6211 of the Family Code.

“Abduct” means take, entice away, keep, withhold, or conceal.⁴⁷

Elizabeth Smart Abduction Case

Elizabeth Smart, a fourteen-year-old Mormon girl living in Salt Lake City, was asleep in the early morning hours of June 5th, 2002. Her nine-year-old sister Mary Katherine, who slept in the same room, woke as a man crept in the window. Frightened into pretending to sleep, Mary watched the intruder wake her sleeping sister and threaten her with a knife, saying, “You better be quiet, and I won’t hurt you.”

Moments later, both the intruder and Elizabeth were gone, leaving the nine-year-old to seek help from her sleeping parents.

The man led the captive girl to his camp in the woods, where his wife, Wanda Barzee, ritually washed Elizabeth’s feet, a Biblical tradition. The kidnapper performed a ceremony he said married Elizabeth to him and proceeded to rape her.

The day after the kidnapping, the Smarts held a press conference pleading for whoever took their daughter to return her safely home. Soon after, 2,000 volunteers swept the area around the Smart home, even using dogs and aircraft to aid the search. They uncovered nothing. As months passed, the police investigation uncovered hundreds of potential suspects, eventually focusing on a 26-year-old drifter named Bret Michael Edmunds. Suspicion intensified over Edmunds until he was discovered in a West Virginia hospital after suffering an overdose. Primary suspicion then turned to a handyperson previously hired by the Smarts, Richard Ricci, who was in police custody for other reasons. Ricci, on parole for the attempted murder of a police officer, was charged with felony burglary charges in the neighborhood of the Smart home. Despite pressure to confess from local police, Ricci refused until dying in jail of a brain hemorrhage. All leads died with him.

The Smart family, with extended kin, refused to let the lack of developments silence media coverage. They started a website to serve as a resource for the investigation and provided media with home videos of Elizabeth as a child and teenager.

Then, in October of 2002, Mary Katherine suddenly remembered where she had heard the kidnapper’s voice: “I think I know who it is,” she said. “Emmanuel.”

Emmanuel (“God is with us” in Hebrew) had done a single day’s paid yard work for the Smarts as well as spread word throughout the Salt Lake homeless population that the family was interested in hiring for odd jobs. When Mary Katherine told police she suddenly and without apparent cause remembered the kidnapper’s voice as that of a man she had met briefly more than a year before, police did not believe her. The Smart family publicly accused police of not following up on the lead.

The family then hired a sketch artist to draw “Emmanuel’s” face according to their memories and distributed the drawing to all interested media with the help of America’s Most Wanted host John Walsh. Emmanuel’s family recognized the drawing and reported the man’s actual name: Brian David Mitchell.

On March 12, 2003, nine months after the abduction, an alert citizen in Sandy, Utah, who learned about the kidnapping on television, spotted Mitchell traveling with two people and contacted police. When officers approached the trio for questioning, they discovered Mitchell, Barzee, and, disguised in a gray wig and veil, Elizabeth.

Mitchell and Barzee were arrested. Initial psychological assessment announced Mitchell delusional and not competent to stand trial; the ruling was then superseded by the court. But when the trial began and Mitchell acted out demonstrably in court, shouting religious condemnations, scripture, and hymns, the judge ruled the behaviors suggested psychosis.

Mitchell was placed in the care of Utah State Hospital for pathological paranoia. In February of 2006, a bill passed the Utah legislature allowing for forcible medication of defendants to ensure competence to face trial. In June, a judge approved forcible medication of Barzee so she could stand trial. A similar motion regarding Mitchell proved highly controversial, eventually reaching federal court on October 10, 2008. Intense debate raged as to whether Mitchell was genuinely delusional or merely highly manipulative, with expert witnesses testifying to both perspectives. Mitchell was finally declared competent to stand trial. Years before, negotiations in a plea deal had reached an impasse primarily on one point: Mitchell’s defense demanded that Smart not testify in court. Eight years after taking Elizabeth out the window in view of her sister, Mitchell stood trial for the crime. The trial lasted more than four weeks. Smart testified in the presence of Mitchell for three days, recounting nine months of rape, sometimes multiple times a day, and being forced to watch pornographic films and drink alcohol to erode her resistance.

Elizabeth’s testimony sealed her abductor’s conviction. Mitchell was sentenced to two life sentences in federal prison.⁴⁸

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⁴⁷California Penal Code (2024)

⁴⁸Johnson (2016)