Kidnapping, Abduction, & Unlawful Restraint
Kidnapping means taking and conveying away a person against his or her will or confining a person to a controlled space for an illegal purpose. The purpose or motive behind kidnapping includes gaining a ransom or reward; facilitating the commission of a felony or terrorizing the victim or a third person. Even unlawful restraint of a person amounts to kidnapping if such restraint is substantial enough to interfere with the victim’s liberty. Essential elements of kidnapping include “transportation in interstate commerce of an unconsenting person who is held for ransom, reward, or otherwise, with such acts being done knowingly and willfully.” United States v. Hood, 143 Fed. Appx. 94, 97 (10th Cir. Okla. 2005). The two key elements of kidnapping are unlawful taking of the victim and a nefarious motive like obtaining a ransom. The intent of the kidnapper is a decisive element in the crime of kidnapping. The physical taking or removal of a person from his/her home by the use of force, fraud, or coercion amounts to kidnapping. Kidnapping generally includes the seizing, confining, or detention of another person against his/her will.
Austin Kidnapping Defense: The Charles Johnson Law Firm
The Charles Johnson Law Firm knows what it takes to defend you against this serious charge. The first step to formulating a defense strategy is to completely understand the kidnapping charge as well as other potential charges that might be filed against you.
Kidnapping Terms: "Restrain" vs. "Abduct"
Given the wide variety of circumstances that can be involved in a kidnapping case, there are a few terms that clarify what is going on. Outlined in §20.01 of the Texas Penal Code, these terms are as follows:
- Restraint - To restrain another person is to restrict their movement without consent, either by moving them from one place to another or by confining them within a certain space. "Without consent" can mean the traditional definition by using force, intimidation, or deception, but it's not always that simple. A lack of consent can be present even if the victim approved of the action provided that:
- the victim is under 14 years of age and his or her parent or guardian hasn't approved of the action, or
- the victim is between 14 and 17 and is taken out of state and beyond a 120-mile radius from his or her residence
- Abduction - Abducting someone consists of taking them and attempting to prevent their rescue, either by keeping somewhere they are unlikely to be found or by threatening the use of violence should rescue be attempted.
The distinction between these terms is essential to understanding the differences between the types of kidnapping charges in Texas.
Unlawful restraint consists of intentionally restraining another person according to the above definition of restraint. As provided in §20.02 of the Texas Penal Code, there are a few factors that may mitigate or exacerbate the offense in the case of unlawful restraint. Primarily, an unlawful restraint charge is a Class A misdemeanor, but the following situations may change that:
- If the restrained person is under 14, related to the defendant, and the defendant only intended to exert lawful control over the person, the charge is reduced.
- The restrained person is 14–17 years of age, no force, intimidate, or deception is used, and the defendant is no more than three years older than the person, the charge is reduced.
- The charge becomes a state jail felony if the restrained person is under 17.
- A third degree felony may be charged if the defendant recklessly endangered the restrained person or if the restrained person was an on-duty public servant.
This degree of restraint is typically not as severe as other kidnapping charges, but can still be quite burdensome and stressful to those charged with it. Contact an attorney if you believe your circumstances don't warrant the charge.
The charge known as kidnapping simply requires an abduction of another person as provided in the above definition of abduction. This charge is described in §20.03 of The Texas Penal Code, where it gives a simple definition, a mitigating circumstance, and the degree of seriousness for the crime.
A kidnapping charge is considered a third degree felony in almost every case, provided that the charge hasn't been enhanced to aggravated kidnapping. However, there is an exception to this that can be used in your defense: if you are related to the person you allegedly abducted, didn't use or threaten to use violence, and no other ulterior motives were present, you can bring forward the facts of your circumstances to reduce or drop the kidnapping charge you have received.
Occasionally referred to as "kidnapping plus", aggravated kidnapping involves abducting someone with some other purpose in mind that is deemed significantly more dangerous or harmful to the restrained person or other people. This charge is most often a first degree felony, so it is not something to take lightly.
As outlined in §20.04 of the Texas Penal Code, aggravated kidnapping requires one of the following factors in addition to the abduction:
- The victim has been held for ransom.
- The defendant holds the victim as a hostage or uses him as a human shield.
- An attempt to leverage the victim into committing or escaping from a felony is made.
- Bodily harm or sexual abuse is inflicted upon the victim.
- The defendant terrorizes the victim or another person.
- The defendant intends to interfere with government or political function
- A deadly weapon is used during the kidnapping.
However, if it can be shown that the victim was voluntarily released to a safe place, the charge can be reduced to a second degree felony.
The final type of kidnapping-related charge is known as unlawful transport. This charge consists of abducting and transporting an individual such that they are hidden from law enforcement agencies and there is a significant risk of them suffering serious bodily injury or death. A charge of this type is considered a state jail felony, as outlined in §20.05 of the Texas Penal Code.
Elements of the Crime of Kidnapping
Taking, Seizing, Detention, or Restraint
Generally, the elements of the crime of kidnapping depend on the wording of the applicable state statute. However, generally the offense of kidnapping consists of the taking and intent to kidnap. The elements of coercion or deception are als generally essential to the crime of kidnapping. Furthermore, kidnapping generally includes the seizing, confining, or detention of another, and such conduct is, essential to a criminal abduction or kidnapping.
According to some authorities, confinement alone is sufficient to constitute kidnapping. The essence of confinement is not its location but whether the victim, by his or her confinement, is effectively isolated from the usual protections of society. The element of restraint is present, when there is substantial interference with the person’s liberty.
In some states, in order to convict defendant of kidnapping, it is required that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her or his will and without lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person
Movement, Asportation, or Carrying Away
In some jurisdictions, kidnapping by asportation is one of the methods by which the offense may be established. In this regard, some state kidnapping statutes require proof of an unlawful act taking one of several alternative forms, including seizure, confinement, kidnapping, abduction, or carrying away. In some states, to prove the crime of kidnapping the prosecution must prove that a person was unlawfully moved, by the use of physical force or fear, the movement was without the person’s consent, and the movement of the person was for a substantial distance.
Effect of Distance of Removal or Duration or Place of Detention
Kidnapping statutes do not give importance to the distance a kidnapped individual is moved, the duration of removal or place of detention. Courts have upheld kidnapping convictions based upon small degrees of confinement or movement. In this regard, it has been said that taking or confinement is a necessary element of kidnapping, not the distance of the taking or the time or place of the confinement.
However, in some states, to prove the crime of kidnapping the prosecution must prove that a person was unlawfully moved and, among other things, that the movement of the person was for a substantial distance.
Force or Threat; Confining or Taking By Force; Other Means of Instilling Fear
Some state kidnapping statutes do not require use of force for the commission of the crime of abduction. In some jurisdictions, in order to establish the offense of kidnapping, the prosecution must prove beyond a reasonable doubt that the defendant confined the victim by force. Furthermore, in some states, in order to convict a defendant of kidnapping the prosecution must prove that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her or his will and without lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person. However, in some other jurisdictions, the focus in determining whether kidnapping has occurred is on the act of restraint “without consent.”
Secrecy; Concealment and Deception
Some kidnapping statutes consider “secrecy” as a required element, but in some jurisdictions, showing of secrecy is not a required element of kidnapping. Furthermore, in some states, in order to convict a defendant of kidnapping the prosecution needs to prove that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person without his or her consent and without lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person. When the statutory definition contains secrecy as a requirement, it is an essential element of the crime.
Some statutory definitions of kidnapping have used the word “concealment.” Concealment depends on the circumstances, and it may be accomplished even on a public highway. There can be secret confinement in an automobile, within the meaning of a statute requiring secrecy, so long as it is in motion on the highways of the state.
Under some statutes, deception is an element of kidnapping.
Lack of Consent of Victim
One of the essential elements of kidnapping is lack of consent of victim. Both common law and modern statutes state that the taking or carrying away must be against the will of the victim. The involuntariness of the seizure and detention is the very essence of the crime of kidnapping. The fact that the victim may have initially consented to some conduct does not necessarily prevent the establishment of the lack of consent element.
Effect of Incapacity to Consent; Child as Victim
In order to establish the offense of kidnapping, kidnapping must be against the will of the victim. If the victim is of such age or mental state as to be incapable of having a recognizable will, the confinement must then be against the will of the parents or legal guardian of the victim. However, incapacity of the victim must be proved beyond a reasonable doubt, in relation to the very acts in question, before criminal liability may be imposed. The general rule is that child under the age of 14 years is presumed as incapable of consenting. In order to show a will regarding an alleged kidnapping, the child must, at least, understand the concept of kidnapping and its potential relevance to his or her situation.
Particular Purpose or Intent
Conviction for kidnapping requires purposeful or knowing action, by the defendant, to forcibly restrain the victim. Kidnapping is the taking or confining of any person, accomplished by force, threat, or deception, with the intent to hold such person: (1) for ransom, or as a shield or hostage; (2) to facilitate flight or the commission of any crime, even if the crime facilitated is a less serious crime, such as robbery or rape; (3) to inflict bodily injury or to terrorize the victim, or another; or (4) to interfere with the performance of any governmental or political function.
One commits kidnapping if he or she abducts another or, having abducted another, continues to restrain him or her with the intent to commit a felony. The intent to keep or conceal a child from its parent, guardian, or other person having lawful care or control thereof is an essential element under some kidnapping statutes. Moreover, in some states, in order to convict a defendant of kidnapping the state need to prove that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her or his will and without lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person.
First-degree kidnapping requires the intent to force the victim, or any other person, to make any concession or give up anything of value in order to secure the release of the victim who is under the offender’s actual or apparent control. The offense of aggravated kidnapping requires intent to inflict bodily harm or to terrorize.
Although taking or carrying a person away for a certain purpose may be an element of the crime of abduction or kidnapping, in order to constitute the offense of kidnapping, it is not necessary that the purpose must have been accomplished.
First-degree kidnapping requires only intent to force a concession or taking of a person. However, it does not require that the concession actualy be made or that the ultimate purpose of the abductiobe accompished.
Austin Kidnapping Defense: The Charles Johnson Law Firm
Punishment for Kidnapping can differ depending on the circumstances of the case. Kidnapping charges must be taken very seriously, as they typically range from significant jail time to life in prison with high bail amounts -- or even no bail amounts. Moreover, they can lead to other serious charges that might lead to additional prison time and the possibility of lifetime registration as a violent or sexual offender.