2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 3 - Kidnapping, False Imprisonment, and Related Offenses
§ 16-5-40. Kidnapping

Universal Citation: GA Code § 16-5-40 (2021)
  1. 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.
    1. For the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.
    2. Movement shall not be considered merely incidental to another offense if it:
      1. Conceals or isolates the victim;
      2. Makes the commission of the other offense substantially easier;
      3. Lessens the risk of detection; or
      4. Is for the purpose of avoiding apprehension.
  2. The offense of kidnapping shall be considered a separate offense and shall not merge with any other offense.
  3. A person convicted of the offense of kidnapping shall be punished by:
    1. Imprisonment for not less than ten nor more than 20 years if the kidnapping involved a victim who was 14 years of age or older;
    2. Imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, if the kidnapping involved a victim who is less than 14 years of age;
    3. Life imprisonment or death if the kidnapping was for ransom; or
    4. Life imprisonment or death if the person kidnapped received bodily injury.
  4. Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
  5. The offense of kidnapping is declared to be a continuous offense, and venue may be in any county where the accused exercises dominion or control over the person of another.

(Laws 1833, Cobb's 1851 Digest, p. 788; Code 1863, §§ 4266, 4267; Code 1868, §§ 4301, 4302; Code 1873, §§ 4367, 4368; Ga. L. 1876, p. 39, § 1; Ga. L. 1880-81, p. 74, § 1; Code 1882, §§ 4367, 4368; Penal Code 1895, §§ 109, 110; Penal Code 1910, §§ 109, 110; Code 1933, §§ 26-1601, 26-1602, 26-1603; Ga. L. 1937, p. 489, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 99, § 1; Code 1933, § 26-1311, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 970, § 1; Ga. L. 1994, p. 1959, § 4; Ga. L. 2006, p. 379, § 5/HB 1059; Ga. L. 2009, p. 331, § 1/HB 575.)

Cross references.

- Jurisdiction of the Court of Appeals over certain crimes, § 15-3-3.

Statutory rape, § 16-6-3.

Enticing a child for indecent purposes, § 16-6-5.

Time limitation on prosecution for crimes punishable by death or life imprisonment, § 17-3-1.

Law enforcement agencies' duties to collect information as to missing persons, §§ 35-1-8,35-3-4.

Prohibition on minimum waiting periods for initiating missing person report, § 35-1-18.

Immunity of broadcasters from liability for Levi's Call: Georgia's Amber Alert Program, § 51-1-50.

Editor's notes.

- Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), held that imposition of the death penalty for rape where the victim is not killed is in violation of the Eighth Amendment. Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (1977), citing Coker, held the death penalty for kidnapping where the victim is not killed to be in violation of the Eighth Amendment. The Supreme Court of Georgia, in Collins v. State, 239 Ga. 400, 236 S.E.2d 759 (1977) held that the rationale of Coker must be applied also to kidnapping.

Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994'."

Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:

"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and

"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."

Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."

Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability.

Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Law reviews.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For survey article on death penalty decisions from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 175 (2003). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For annual survey of law on criminal law, see 62 Mercer L. Rev. 87 (2010). For article, "The Thirteenth Amendment and Human Trafficking: Lessons & Limitations," see 36 Ga. St. U.L. Rev. 1005 (2020). For article, "Preventing Trafficking Through New Global Governance Over Labor Migration," see 36 Ga. St. U.L. Rev. 1027 (2020). For article, "The Public Health Approach to Human Trafficking Prevention," see 36 Ga. St. U.L. Rev. 1059 (2020). For note on the 1994 amendment of this Code section, see 11 Ga. St. U. L. Rev. 159 (1994). For comment on Adams v. State, 218 Ga. 130, 126 S.E.2d 624 (1962), see 25 Ga. B. J. 327 (1963).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Relationship to Other Offenses
  • Jury Instructions
  • Punishment
  • Application

OPINIONS OF THE ATTORNEY GENERAL

When offenders under 17 years to be placed in custody of Department of Offender Rehabilitation.

- Kidnapping, not being punishable by death or imprisonment for life, is not an offense which requires the offender under 17 years of age to be placed in the sole custody of the Department of Offender Rehabilitation; where the offender under 17 years of age is convicted of kidnapping for ransom or kidnapping in which the victim receives bodily injury, both being offenses punishable by life imprisonment or death, the juvenile offender shall only be sentenced into the custody of the Department of Offender Rehabilitation. 1975 Op. Att'y Gen. No. 75-73.

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Abduction and Kidnapping, § 1 et seq.

C.J.S.

- 51 C.J.S., Kidnapping, §§ 1, 25.

ALR.

- Offense of abduction or kidnapping as affected by defendant's belief in legality of his act, 114 A.L.R. 870.

Kidnapping by fraud or false pretenses, 95 A.L.R.2d 450.

What is "harm" within provisions of statutes increasing penalty for kidnapping where victim suffers harm, 11 A.L.R.3d 1053.

What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.

Seizure of prison official by inmates as kidnapping, 59 A.L.R.3d 1306.

False imprisonment as included offense within charge of kidnapping, 68 A.L.R.3d 828.

Antagonistic defenses as ground for separate trials of codefendants in criminal case, 82 A.L.R.3d 245.

Necessity and sufficiency of showing, in kidnapping prosecution, that detention was with intent to "secretly" confine victim, 98 A.L.R.3d 733.

Violation of state court order by one other than party as contempt, 7 A.L.R.4th 893.

Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823.

Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49 A.L.R.4th 7.

Coercion, compulsion, or duress as defense to charge of kidnapping, 69 A.L.R.4th 1005.

Validity, construction, and application of "hold to service" provision of kidnapping statute, 28 A.L.R.5th 754.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

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