Domestic violence is something we have all heard about, and many have experienced it firsthand, or know someone who has. It is a problem all around the world, and is even generally accepted or not sufficiently addressed in some countries. While men can be the victims of domestic violence, it tends to disproportionately affect women.

In reality, domestic violence is not a crime in and of itself. Rather, the law recognizes that when a crime, battery for example, is committed in a domestic setting (meaning between two people who are cohabitating; or between a parent and child or other, similar relationship) the crime is especially severe, and imposes stricter penalties than if the crime were committed outside of a domestic setting.

In California, domestic violence is understood to be a serious issue, and the criminal laws of the state recognize this by imposing harsh penalties on anyone convicted of a domestic violence crime. In many cases, the severity of the penalties comes from the prosecutor charging multiple crimes, rather than a penalty enhancement from a single charge. There are also a fairly large number of private and non-profit organizations, hotlines, support groups and other resources available to assist victims of domestic violence, both in California and around the country.

False Imprisonment is one of those crimes that the law recognizes can, and often, will be committed in a domestic setting. While there is no additional or more severe penalty associated with a false imprisonment charge arising from a domestic setting, prosecutors will often tack on a false imprisonment count when pursuing other charges, such as a domestic violence battery (which is what is generally referred to by the simple phrase "domestic violence.")

Because false imprisonment is a crime that is often charged along with other domestic violence charges, it is important to understand what constitutes the crime, how it can apply in the context of domestic violence and what can happen if it is alleged.

What is False Imprisonment:

As the name suggests, false imprisonment involves imprisoning another person against their will. However, the offense does not require anything elaborate or long-term, such as chaining up someone in the basement of a home and keeping them prisoner indefinitely.

In simplest terms, false imprisonment involves keeping a person in a place they do not want to be. More specifically it is a crime whereby the offender knowingly restrains, confines or detains the victim, through means of fraud, deceit, menace, violence or some other method; such that the victim is prevented from freedom of movement.  The detention must be non-consensual and must be unwanted by the victim, to constitute criminal activity. The California Penal Code section that prohibits false imprisonment, section 236, actually states it much more succinctly, as unlawfully violating another person's personal liberty.

In California, false imprisonment is a wobbler, meaning it can be prosecuted as either a felony or a misdemeanor. Generally, if the false imprisonment was committed by means of fraud, deceit, menace or violence, it will be charged as a felony. If it was accomplished by another means, it will generally be a misdemeanor.

Because charging a false imprisonment as a felony can significantly increase the penalties a defendant faces, it is worthwhile to understand what constitutes, fraud, deceit, menace and/or violence as it pertains to the offense. Three of those means of false imprisonment, fraud, deceit and violence are fairly easily understandable, though the distinction between fraud and deceit is not as easily understood. What constitutes menace may need some explanation.

Fraud and deceit are very similar in that they both involve intentional misrepresentations by the offender. While the Penal Code tends to use both of these terms together, it does not specifically define each of them. That said, for the most part, fraud is a type of intentional deception that induces reliance on the part of the victim (i.e., the victim believes the offender's misrepresentation and acts in accordance with that belief,) while deceit does not induce reliance. A good example of the distinction between the two terms can be understood using an example of a locked room.  

Let's say you have two people in a locked room. One person ("person 1") holds the key to the room, and the other person ("person 2") does not know where the key that unlocks the room is located. Person 2 wants to leave the room, and tells person 1 to unlock the door. Person 1 then denies having a key to unlock the room. If person 2 relies on person 1's denial of having a key and remains in the room; then person 1 is being falsely imprisoned through fraud. If person 2 does not believe person 1, and attempts to look for a key somewhere in the room, such as in person 1's pockets but cannot find the key, then person 2 is being falsely imprisoned by deceit.

Regarding menace, the California Penal Code does not specifically define the term, as it applies to false imprisonment, but the term does have a generally understood meaning in the context of criminal law. In simplest terms, menace can be understood as the threat of violence on a person which induces a reasonable fear of violence on the part of the victim. This can involve direct verbal threats (e.g., saying "if you try to leave I'm going to kill you") or non-verbal (e.g., brandishing a deadly weapon.) The threat of violence can be directed at the victim, it can be directed at someone with whom the victim shares a relationship (e.g., saying "if you try to leave I'm going to kill your brother (or sister)") or it can be directed at a person with whom the victim shares no relationship (e.g., "if you try to leave, I'm going to take my gun and start shooting anyone I can find.") It does not matter whether or not the offender could or would follow through on their threats, or even (such as in the case of brandishing a weapon) whether they specifically intended to make a threat. Rather, the critical inquiry is whether or not the victim had a reasonable fear that they or another person would be subjected to violence.    

Another important aspect of false imprisonment, is that there is no minimum time requirement for commission of the crime. Whether a victim is confined for hours, days or just a fleeting moment; the offender can still be charged. In other words the crime is less about the confinement of the victim than it is about the violation of their ability to come and go as they please; the violation of their personal liberty.

Finally, violence, menace, fraud and deceit are not the only ways in which false imprisonment can be committed. There are any number of ways a person can commit the crime. Basically, anything that reasonably forces a person to remain in a place when they want to leave is sufficient for the offense. This includes, but is not limited to, physically blocking an exit, confiscating or hiding a means of egress (such as car keys) and confiscating or hiding any sort of personal property that the victim is reasonably unwilling to leave without; particularly if the victim reasonably believes that the offender will damage, destroy or steal that property if it is left with them.      

 Examples of False Imprisonment:

  • Tony and April are boyfriend and girlfriend, and live together in a small apartment. One day, after coming back from a friend's party where they were both drinking, Tony and April get into an argument. After trading barbs and yelling at each other for a short while, April decides she has had enough and tells Tony she is leaving. Upon hearing this, Tony grabs April's arm and shoves her down onto a couch, telling her "you are not going anywhere." Tony then stands directly over her, so she cannot stand up. Meanwhile, a neighbor hears Tony and April yelling at each other and calls the police. When an officer arrives at the apartment, Tony answers and says they were just having an argument. Then, April comes to the door and tells the officer that when she tried to leave, Tony grabbed her arm, shoved her down onto the couch and prevented her from leaving. Tony is then arrested for domestic violence battery as well as felony false imprisonment because he confined April by means of violence.

  • Lana and Lois are a couple who have been dating for just a couple of weeks, and while they have been having fun together, they are beginning to realize that they are not the best fit for one another. One evening, while Lois is over at Lana's house, they get into an argument, and each say things they can't take back; effectively destroying the relationship. In anger, Lana takes Lois's car keys off the coffee table while Lois is in the bathroom, and throws them out into the back yard. When Lois comes out of the bathroom, she sees that her car keys are no longer on the coffee table, and screams at Lana to give them back. Lana ignores her, puts on her headphones and starts playing World of Warcraft on her computer. Desperate, Lois calls her friend, Clark, tells him what happened and asks him to come pick her up. As Clark works in the District Attorney's office, he is aware that what Lana did was false imprisonment, so he calls the police. Clark and a police officer arrive and instruct Lana to return Lois's keys. Lana then goes into the back yard and retrieves the keys. She is then charged with misdemeanor false imprisonment.   

  • James and Patrick, just like Lana and Lois, are also a couple who have been dating for a couple of weeks. They are also finding out that they are not a good match for one another. They get into an argument while James is at Patrick's apartment. When Patrick tells James that he hates everything about him, James gets upset and says he is leaving. Patrick regrets what he said, and asks James to stop. James refuses and goes to get his coat. Patrick takes the opportunity to swipe James's keys off the coffee table. When James sees his keys are missing, he tells Patrick to return them. Patrick then claims that he doesn't have them and doesn't know where they are. While James does not believe him, he does not go looking for them. Instead, he calls his father, who is a police detective and tells him that Patrick stole his keys so he could not leave. James's dad calls the police station and has an officer go out to the location. When the officer arrives, he asks Patrick whether he stole or hid James's keys. Patrick admits that he did because he didn't want James to leave before they could work out their differences. Patrick then returns the keys. He is later charged with felony false imprisonment due to his use of deceit in preventing James from leaving.

  • Judy is in an abusive relationship with her husband Tom. While the abuse is typically verbal and psychological, on a couple of occasions, Tom has hit her. Eventually Judy gets fed up, and tells Tom that she is leaving and never coming back. Tom responds that if Judy tries to leave, he is going to beat her within an inch of her life. Since Tom has become violent with her before, she reasonably believes that Tom is serious about his threat. Because of the threat, Judy does not leave at that time. Later that night, Judy finds the courage to leave and gets out. With the assistance of a domestic violence support group, Judy goes to the police and tells them everything that Tom has done. Tom is then arrested for domestic violence battery, as well as felony false imprisonment because he prevented her form leaving by means that constituted menace.

  • Caleb and Tawny are on a first date. They are hitting it off, and decide to go back to Caleb's apartment afterward. At Caleb's apartment, it is immediately apparent to Tawny that Caleb is a drug addict. She decides that she isn't going to get involved with him, and says she is going to leave. Before she leaves, she checks her purse and sees that her wallet is missing. She concludes that Caleb stole it and she demands that he return it. She thinks that if she leaves without it, she will never see it again. Caleb denies that he stole anything, but Tawny does not believe him. She calls the police, and tells them what happened. When the police arrive they instruct Caleb to return the wallet, but he continues to deny that he took anything. The officer informs him that if they find the wallet he will be charged not only with theft, but with false imprisonment as well. Caleb repeats that he didn't steal anything. Just then, the restaurant where they had their date called Tawny and tells her that she left her wallet there, and she needs to come get it.  The police then tell Tawny there is nothing they can do and leave. Caleb is not charged with any crime. While Tawny reasonably believed that Caleb had her wallet, and she was justified in not leaving without it; Caleb did not commit an that prevented Tawny from leaving.              

What Does a Prosecutor Need to Prove on a Charge of False Imprisonment:

For a defendant to be proven guilty of false imprisonment, whether in a domestic violence context or otherwise, a prosecutor must prove the following:

For misdemeanor false imprisonment:

  1. The defendant confined, restrained or detained the victim; and
  2. The defendant acted against the will of the victim, and did not obtain consent; and
  3. The defendant acted knowingly when they confined, restrained or detained the victim.   

For felony false imprisonment:

  1. The defendant confined, restrained or detained the victim; and
  2. The defendant acted against the will of the victim, and did not obtain consent; and
  3.  The defendant acted knowingly when they confined, restrained or detained the victim.
  4. The defendant acted by means of fraud, deceit, violence or menace when they confined, restrained or detained the victim.

Penalties For Domestic False Imprisonment:

For misdemeanor false imprisonment:

  1. Jail up to 1 year; and/or
  2. A fine of up to $1,000; and
  3. Up to 3 years of summary probation.

For felony false imprisonment:

  1. Jail up to 16 months, 2 or 3 years; and/or
  2. A fine of up to $10,000; and
  3. Up to 5 years of formal probation

Defenses to Domestic False Imprisonment Charges:

The alleged Victim was Not Actually Confined, Restrained or Detained: If the alleged victim was factually mistaken about being able to leave a place (e.g., they thought they were in a locked room when the door was not actually locked) then the defendant cannot be convicted of false imprisonment, even if the alleged victim reasonably believed they were confined to the room. However, if the defendant did anything to cause the alleged victim to believe they were confined, restrained or detained, then they can be charged with false imprisonment, likely as a felony for use of fraud or deceit.

Good Faith Self-Defense or Defense of Others:  If the alleged victim was restrained by the defendant because the defendant reasonably believed that the alleged victim was an immediate danger to themselves, the defendant or another person, the defendant can defend on grounds that they were acting in self defense or defense of others. A good example of this would be confiscating the car keys of a person who is clearly drunk and wanted to get in their car and drive away.

Consent: A defendant cannot be convicted of false imprisonment if the alleged victim consented to being restrained, detained or confined. There are a number of situations where this can come into play, such as will an "escape room" activity. However, if the alleged victim's consent was obtained via deceit or fraud, the defense will likely fail.

No Reasonable Belief in Threat: In order for a defendant to be convicted of false imprisonment for confining, restraining or detaining a person by means of threat of violence, destruction of property or any similar threat, the alleged victim must reasonably believe that the defendant is going to follow through in their threat. If the alleged victim lacks that reasonable belief, either because they don't believe the defendant has the necessary physical strength, doesn't believe the defendant has a character capable of following through in the threat or believes the defendant was joking; the defendant cannot be convicted of false imprisonment. 

False Accusation: In domestic violence cases, it is not unheard of for one person to falsely accuse the other out of spite, or a desire to get revenge. These cases will often result in a he-said she-said scenario, such that it will be impossible to definitively prove one way or the other whether a crime was committed. A skilled defense attorney may be able to generate reasonable doubt as to whether a claim of false imprisonment is true or false. Since the prosecution must prove the crime beyond a reasonable doubt, that may be enough to successfully defend against the charge. 

Lack of Restraint:  In some instances the complaining witness may have a clear path to exit the restraining situation.  In such cases, it can be argued that there is no actual restraint, and the complaining witness was free to leave.

How We can Help:

David Foos has been helping Northern Californians accused of crimes for over 40 years.  David was at first a Deputy Public Defender where he handled all manner of cases, from misdemeanors to homicides.  David has handled hundreds of domestic violence cases, including those where false imprisonment has been charged and obtaining successful results for his clients.  David is knowledgeable on all the defenses and has relationships that he can foster to benefit you on your case.  Do not hesitate to call Sacramento Criminal Lawyer David for a free consultation at 916-779-3500, or reach him on the web at This email address is being protected from spambots. You need JavaScript enabled to view it..