What is Aggravated Kidnapping? A defense lawyer explains

In some states, an act of kidnapping is considered aggravated if it is committed under aggravating circumstances such as:

• kidnapping for ransom, reward, or to commit extortion,
• kidnapping to commit robbery, rape, or other sexual offenses,
• kidnapping another person during the commission of a carjacking, or
• if the victim suffers death or bodily harm.

Aggravated kidnapping often carries a life sentence with or without the possibility of parole. In contrast, “simple kidnapping” typically carries a few years in prison.¹

Defenses to the crime of kidnapping include:

• protecting or trying to protect a child from imminent harm,
• the accused was making a lawful citizen’s arrest,
• there was only incidental movement of the victim,
• consent of the victim.

Simple vs Aggravated Kidnapping

To prove that the accused is guilty of simple kidnapping, prosecutors typically must prove that:

• The accused kidnapper took, held, or detained another person by using force or fear;
• Using that force or fear the accused moved the other person or made the other person move a substantial actual distance, and
• The other person did not consent to the movement

To consent means a person acted freely and voluntarily and knew the nature of the act. Substantial distance means more than a slight or trivial distance. The movement must put the victim in more danger, such as by being moved farther away from a door, window, or other means of escape.

In some states, a person is guilty of aggravated kidnapping if during the commission of the offense they:

• kidnap for ransom, reward, or to commit extortion,
• kidnap to commit robbery, rape / sexual assault, or other sexual offenses,
• kidnap another person (third person) during the commission of a carjacking,
• if the victim suffers, or there is a substantial likelihood of suffering, death or serious bodily injury (such as if the defendant used deadly force or a deadly weapon or otherwise dangerous weapon to subdue the victim).

In cases of aggravated kidnapping for purposes of robbery, rape, or other sexual offenses, the forcible movement (“asportation”) typically has to:

• be more than incidental to the commission of the robbery or the sex offense; and
• increase the risk of physical or psychological harm to the victim, beyond that inherent in the robbery or the sex offense.

Note that kidnapping for ransom or extortion can occur when a person is not moved but is instead seized, confined or held.²

Punishment

Aggravated kidnapping is always a felony. And in states like California, Texas and New York, the maximum penalty is life in prison.³

In states that have a “three strikes law” such as Nevada, New Jersey, and California, aggravated kidnapping counts as a “strike.”⁴

Depending on the state and the circumstances, defendants may be eligible for probation in lieu of some incarceration. In some cases, prosecutors may be willing to reduce aggravated kidnapping charges down to simple kidnapping or false imprisonment.

Defenses

The commission of a felony always carries the risk of prison time. But some defense arguments that kidnapping lawyers may use to get the charges reduced or dismissed include:

• the accused was protecting or trying to protect a child from imminent harm,
• the accused was making a lawful citizen’s arrest (such as in shoplifting cases),
• there was only incidental movement of the alleged victim,
• the accuser falsely accused the defendant,
• consent of the victim was given freely and not under duress or fraud.

Note that criminal defense lawyers can often achieve a favorable resolution without going to trial, especially if they can show prosecutors they lack sufficient evidence to prove guilt beyond a reasonable doubt.

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Legal References