What Happens if I am Charged with Kidnapping in Georgia?

The crime of kidnapping is considered a felony in Georgia. A felony conviction can affect numerous areas of your life, and it is crucial to get a good defense team from the very start. Lawson and Berry and their team of Georgia Kidnapping Attorneys are experts in their field and will help you create the best defense specifically tailored to your case. Don't wait to call; schedule your free consultation today.

Georgia Law O.C.G.A. §16-5-40

A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.

Before the statute was amended, courts followed the four factor test laid out in Garza v. State to assess the sufficiency of the evidence as to the asportation element of kidnapping. 284 Ga. 696, (2008). The four factors were as follows:

1. The duration of the movement;
2. Whether the movement occurred during the commission of a separate offense; 
3. Whether such movement was an inherent part of that separate offense; and
4. Whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense

However, following Garza, Georgia's legislature decided to amend the statute. This amendment only applies to crimes committed on or after the effective date of the statute, July 1, 2009. Therefore, any crime occurring before July 1, 2009, will be decided by the Garza standard. For crimes occurring after July 1, 2009, then the elements laid out in O.C.G.A. § 16-5-40(b) will apply. 

The elements of kidnapping as laid out in Georgia law state that just a slight movement is sufficient to constitute a crime. That action is also called asportation. However, if the movement of the victim is incidental to the commission of another crime, then kidnapping has not occurred. Situations in which the action is not considered kidnapping but instead incidental to another crime include when it:

• Conceals or isolates the victim;
• Makes the commission of the other offense substantially easier;
• Lessens the risk of detection; or
• Is for the purpose of avoiding apprehension.

Case Law

A suspect was convicted of kidnapping in the case of Whatley v. State. 335 Ga. App. 749, (2016). In the case, a clerk of Coleman's Grocery was closing up the store for the night when two men wearing masks approached him from behind and ordered him inside the store. After the men had threatened to shoot, the clerk gave them cash as well as lottery tickets and cigars. The men then forced him inside the store's office and locked the door. During the trial, the two men tried to argue that the kidnapping was merely incidental to the crime of robbery and should therefore not be considered a separate crime. However, the Court did not agree and ruled that the movement satisfied Georgia's kidnapping statute, and they were found guilty.

Another case in which a suspect was found guilty of kidnapping was in Wright v. State, 300 Ga. App. 32, (2009). Two men got out of a car, pulled guns, and forced the victims to “give it up”. The men ordered the victims to get into a car that was about 10 feet away and forced them into the back seat. The victims handed over their wallets, cell phone, and money as they were getting into the car. The suspects argued during court that there was no asportation during the crime. However, the Court concluded that forcing victims into a car sufficed for the movement element and therefore they were convicted of kidnapping. 

Penalty for a Kidnapping Conviction in Georgia

A kidnapping conviction comes with substantial penalties as it is classified as a felony conviction. The consequences for kidnapping a victim who is 14 years or older include a prison term between ten and twenty years. However, if the victim is under 14 years old, then the penalty is elevated to either a life sentence or a prison term between twenty years but less than life with probation for life after getting out of prison. A suspect will receive life in prison or the death penalty if the kidnapping was for ransom or if the victim received bodily injury.

Repeat offenders will receive longer prison sentences. However, a fourth felony conviction will carry a penalty of life in prison with no chance of parole.

Judges could also order some of the sentence to be served through probation. There are multiple factors that a court will take into consideration when determining whether or not the accused is a good candidate for probation. These include but are not limited to criminal history, drug history, employment history, ties to the community, and the crime committed. Also, having a knowledgeable Attorney can increase your chances of receiving probation. They are familiar with the numerous facets of penalties and can help explore avenues that you may not have considered.

Bond for Kidnapping

In most cases, the magistrate court has the authority to set a bond. However, in cases involving kidnapping when combined with additional more serious charges or you are already on probate or parole for certain offenses, only a superior court judge can set the bond. As a result, your case may need a bond motion in either magistrate or superior court because many judges will not issue a bond in kidnapping cases without first examining the evidence and reviewing it. Even when a magistrate court can set the bond, they may not in serious cases and your Georgia Kidnapping Lawyer must file a motion for bond in Magistrate/Superior Court.  Unfortunately, it can then take several weeks to get a hearing before the Superior Court. During this time, the accused will remain in jail until there is a hearing. 

Georgia Kidnapping Defenses

Protecting Child from Imminent Harm: If the accused stole/detained/concealed a child under 14 years old to protect that child from the danger of imminent harm, then the defendant will not be convicted of kidnapping.

The victim was not moved: If the victim was not moved, then there cannot be a conviction for kidnapping. However, the accused could still face a conviction for false imprisonment if the individual was confined against their will.

Mistake: If the defendant was acting under the authority of the law and thought they had the right to capture the victim, then they will have a defense. An example is if they believed there was a warrant out for the person's arrest.

Consent: Any consent by the victim to be taken will establish a defense to a kidnapping charge. Kidnapping requires that the taking is against the victim's will. Therefore, proof of consent will negate a charge.

A Mistake in the Age of Victim: If there is evidence that the Court has the age of the victim wrong, and they are over 14 years ago, then that evidence could help decrease a prison sentence.

Innocence: Witness testimony demonstrating that the evidence is not correct will always be helpful, and your Attorney could be notified of any information like this immediately.

This list is not a complete list of defenses. There are several more that can be applied to your case. You and your Georgia kidnapping attorney will work together to discover what defenses pertain best to your case.

What are not Defenses

The victim was only moved a little: The Court has concluded that even a slight movement of the victim constitutes a movement sufficient for kidnapping. However, the movement could factor into how long of a prison sentence the defendant receives. In the case of Phillips v. State, the Court concluded that moving the victim from a chair to a mattress was sufficient to constitute the movement. 248 Ga. App. 683, (2007).

The victim was not injured: There is no requirement that a victim must be harmed in order to satisfy a kidnapping charge. However, the statute says that there must be a showing of that victim was moved.

I did not complete the crime: Just because the kidnapping was interrupted does not mean that a crime as not committed. While the accused may not be convicted of kidnapping, they could still be convicted of attempted kidnapping.

Contact Us

Felony charges are not to be taken lightly. Lawson and Berry and their team of kidnapping lawyers in Georgia are here for you and can help you through this emotional process. A felony conviction can be detrimental to both you and your family. Do not wait to contact us. Call today for a free consultation.