Kidnapping: Defenses, Penalties and Aggravating Circumstances

Contrary to popular belief, kidnapping doesn’t just happen to children. Kidnapping can happen to adults as well, and even in cases where the alleged kidnapper didn’t actually realize he or she was committing a crime. For example, let’s say you and your girlfriend get into a fight while you are driving her home one night. Obviously, she’s upset and she’s not calming down. You are nowhere near her house and it’s late, but she wants you to let her out, immediately. You refuse. When she tries to get out, you pull her back in by her arm and drive her to her house. The next morning, you receive a call from a detective informing you that a kidnapping complaint has been filed against you. Your initial reaction is most likely, “How can this be…I just didn’t want her to get hurt? I didn’t kidnap her.” 

Before you talk to the investigator, you should understand the kidnapping laws in your state and the penalties you could be facing, so that you will understand the significance of any answers that you decide to give.

Understanding What’s Required to File a Kidnapping Charge

Some states require a significant amount of movement from one place to another before a kidnapping charge can be filed. However, some states define kidnapping as (1) holding someone where they are not likely to be found, (2) without their consent, and (3) by some use of force. Continuing with the example above, understanding the elements of kidnapping in your state will help you understand the detective’s questions. His questions will include queries such as, “I noticed slight bruises on her arm, do you know how that got there”; “ So…the area you were in was secluded where no one could see or hear what was going on,” or “How long had you been fighting that evening.”  

The detective is trying to see if you used force in a secluded area. He will also want to add validity to her story that you were the one upset and that’s why you would not let her leave. Some states will further increase a basic kidnapping charge to aggravated kidnapping, if your girlfriend alleges aggravating factors like the fact that you had a gun in the car, even though she knows you always carry a gun in the center console for your protection. Before you decide to answer the detective's questions, you need to understand how your responses will impact your appearance of guilt or any potential defenses.

Kidnapping Defenses

Many kidnapping statutes have built-in defenses. For example, consent is always a defense. If you can show that your girlfriend consented to the events prior to the evening, consented to getting in the car to return home, and then consented later in the fight to letting you take her home, the total consent picture can rebut the finding that the holding was against her will. You may have also driven through intersections where she did have an opportunity to leave and walk, but did not. Depending on all of the factors involved that night, you may have several defensive angles. If you are guilty of some type of kidnapping, you should still understand these defensive theories as a way to reduce or mitigate punishment.

Penalties for Kidnapping

Punishments kidnapping vary greatly by state and can include as little as a couple of years in prison, and up to life in prison. If you are charged and are guilty of a kidnapping offense, you should strive to compile mitigating factors like the consent defense described above or the absence of any threatening acts. Proving these defensive theories can result in a significant reduction in your sentence. For example, if you were charged with aggravated kidnapping in Texas, but could prove that you voluntarily released your girlfriend in a safe place, your punishment range would drop from 5-99 years to 2-20 years. The reduction in the punishment range is dramatically different. 

In Tennessee, even without a prior felony conviction, if certain aggravating circumstances exist, the sentencing range will begin at 15 years and go up to life in prison. Many states will authorize punishments that include up to life in prison for an aggravated kidnapping charge, whereas a standard kidnapping can range from 1-20 years. Though the exact ranges will vary, the doubling of sentencing ranges for aggravated kidnapping charges occurs in every state. 

In addition to the increased sentences, states will further penalize offenders of aggravated charges with stiffer parole laws, meaning the offender must serve a longer part of their sentence. If the kidnapping included an allegation that an offender was intending or did commit a sexual assault, the offender could also be required to register as a sex offender for the rest of their life.

If you are facing a kidnapping charge and are not sure about the laws in your state or how they apply to your situation, consider seeking out a basic consultation with a criminal defense attorney in your area to help you understand the long-term consequences of giving a statement that can later be used against you.