As with many criminal acts, prosecutors must prove an individual committed the crime intentionally or knowingly, the consent or lack of it from the victim, and the level of danger the defendant placed on the victim through movement to convict on aggravated kidnapping. 

The Legal Definition of Aggravated Kidnapping

Aggravated kidnapping is covered by Section 20.01 of the Texas Penal Code. It involves abduction or restraint:

• Abduction – holding an individual with the intent to prevent them from being released by using or threatening to use deadly force or hiding or holding the individual in a place where they are unlikely to be found.
• Restraint – restricting an individual’s movements without their consent by confining them, so the restraints substantially interfere with their ability to be freed or by restricting their freedom by moving them from one place to another.

Notice that the definition of restraint includes the victim’s consent. Consent means the person (victim) acted voluntarily or freely and understood the nature of the act.

“Without consent” means that the perpetrator used deception, force, or intimidation or achieved consent through an agreement or other means from a person judged to be incompetent or a child.

Above all, the perpetrator must show they intentionally or knowingly committed the act of kidnapping. 

A person acts intentionally if they hold a conscious objective or desire to perform the act or cause the result of the action. They act knowingly if they commit the act while fully aware their conduct is reasonably sure to cause the result of the action.

Finally, movement or “asportation” can be an aggravating factor into kidnapping charges. However, the law says the movement must involve “substantial” distance, meaning more than a trivial or slight distance, which is a deceptive definition. 

Asportation also includes placing the victim in more danger by moving them farther away from a door, window, or other means of escape.

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Aggravating Circumstances

Simple kidnapping is when the perpetrator takes, holds, or detains another person using fear or force and without their consent. It also includes using force or fear to move the victim a substantial and actual distance. 

Circumstances that can change simple kidnapping into aggravated kidnapping include:

• Kidnapping for ransom, reward, or to commit extortion
• Kidnapping during the commission of a carjacking
• Kidnapping to commit robbery, rape, or other sexual offense
• Kidnapping resulting in the victim’s death or bodily injury

Kidnapping for ransom or extortion occurs even if the victim is not moved but is merely seized, held, or confined.

The Texas Penal Code also states that a kidnapping elevates from simple to aggravated if the perpetrator:

• Commits a felony or flees after the attempt or commission of a felony
• Interferes with the performance of any governmental or political function
• Terrorizes the victim or a third party
• Uses the victim as a shield or hostage
• Uses or exhibits a deadly weapon while committing the offense

Aggravated kidnapping doesn’t need to result in the victim’s actual death or injury but also includes the likelihood that the victim could have been injured or died. The prosecution may also introduce the use of deadly force and deadly or dangerous weapons to subdue the victim as an aggravating circumstance.

When the purpose is robbery, rape, or other sexual offense, any forcible movement must be more than incidental to the commission of the crime to be considered kidnapping. 

Also, any forcible movement must increase the risk of physical or psychological harm to the victim beyond that inherent in the robbery or sexual abuse.

Simple kidnapping is a second-degree felony worth two to 20 years in prison and a fine of up to $10,000. 

Depending on the circumstances, aggravated kidnapping is usually a first-degree felony and could get the offender life imprisonment.

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Penalties for Aggravated Kidnapping

Under most circumstances, aggravated kidnapping is a first-degree felony. The court can pass down a sentence of five to 99 years or life and may also choose to levy a fine of up to $10,000.

Penalties also depend on other factors, such as:

• The victim was a child, disabled, incompetent, or elderly
• The offender is a repeat offender
• The offender is a habitual offender
• The offender has a prior criminal conviction

However, if the kidnapper can prove they voluntarily released the victim to a safe place, the court may reduce the charge to second-degree kidnapping, which includes a reduction in prison time to two to 20 years. The potential fine remains the same.

Under some conditions, the prosecution may be willing to reduce aggravated kidnapping to simple kidnapping or false imprisonment, which carries lesser penalties.

False Accusations of Kidnapping

If someone falsely accuses an individual of aggravated kidnapping, the supposed victim may find themselves with a criminal record. They may also be prohibited from owning a firearm, be required to pay fines, find it difficult to be admitted into a school or university, and be banned from voting or holding public office. They may receive a lengthy prison sentence.

Defenses Against Aggravated Kidnapping

Not all actions involving the restraint of another person can be considered aggravated kidnapping. The court can dismiss the charges if the defendant and their attorney can show the following:

• They were protecting or trying to protect a child from imminent harm.
• The victim’s movement was incidental, not central to the commission of the crime.
• They were making a lawful citizen’s arrest.
• They did not use or exhibit a deadly weapon, and there was no evidence of a threat of violence.
• They did not abduct anyone.

Mitigating factors that could reduce the charges include false accusations by the victim. The burden of proof lies on the accused, and the court requires a preponderance of evidence. If the accused released the victim in a safe place, they must still prove that fact.

Why You Need an Attorney

Aggravated kidnapping is a serious crime that can put you in prison for life. You need an experienced attorney on your side who understands criminal law and has the resources to investigate your case and prove the charge false, mitigate the charges, or find other irregularities that reduce the charges or provide the court with a reason for dismissal.

Brett Podolsky has that experience. He will go the distance to provide the legal assistance you need. Contact us today for a free consultation.