Blackmail and Extortion
Blackmail is one of the most highly sensationalized property crimes by the United States’ media. Allegations of blackmail capture our attention and news stories involving blackmail allegations are common.
But what does it mean to “blackmail” another person? In its most basic form, blackmail means threatening another person to gain something of value. This presentation focuses on why blackmail is illegal, introduces the elements of modern blackmail laws, differentiates it from other types of property crimes, and lays out how blackmail is punished.
Elements of Blackmail
Blackmail differs from other theft crimes in that theft requires that property be taken by the criminal. Blackmail encompasses a much broader set of potential criminal activity because the act of blackmail refers to the threat. The crime can be committed without money or property changing hands.
Blackmail is a legal paradox because it does not require a threat of an illegal activity. It’s not generally illegal for a person, for example, to reveal true information about another. However, it is illegal blackmail to demand money from a person in return for not revealing potentially harmful (even if true) information.
This paradox has troubled legal scholars, judges, economists, philosophers, and theologians for hundreds of years and there is no consensus on why it is illegal. Some have argued that there are negative social consequences implicated by blackmail while others have opined that it is the conditional threat that makes blackmail morally wrong.
While the terms “blackmail” and “extortion” are virtually indistinguishable in their common usage, and while they are similar crimes, the terms do not mean precisely the same thing. Blackmail occurs when one person threatens to reveal private information about someone else unless he receives compensation to remain silent. In contrast, “extortion” occurs when a person threatens to physically harm or injure another unless the extortioner receives compensation. Since blackmail and extortion both involve threatening people to get something of value, state legislatures have often codified them under the same statute. These statutes are often officially titled “Blackmail” or “Extortion” or “Theft by Extortion.” Even with the different names, they similarly criminalize both actions, and so the terms can often safely be used interchangeably.
For example, New York refers to blackmail and extortion as “theft by extortion” while Wyoming calls both “blackmail.” These two statutes are similar, but New York is more specific about the types of threats that are considered blackmail.
Examination of a single state’s blackmail laws is helpful to our understanding of what blackmail entails. We’ll look at New York laws, which state that to be convicted of theft by extortion, the following elements must be satisfied:
(1) A person compels or induces the victim to deliver property to him or a third party;
(2) By means of instilling fear that if the property is not delivered the person will:
1. Cause physical injury to the victim; or
2. Cause damage to property; or
3. Commit a different crime; or
4. Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule…
In New York, the focus is on criminalizing conduct where one person induces a victim to give up property. The term “property” covers much more than just “money” and includes personal property, real property, computer data, computer programs, intellectual property and even intangible benefits such as an advantageous business relationship or the right to reside in a leased apartment building.
In other states, all that is required is the blackmailer’s threat to either harm or reveal any secret about the victim. Case law in those jurisdictions would be relied on to flesh out the definitions of ambiguous terms, such as “secret.”
Some obvious examples of prohibited conduct under blackmail statutes include:
- where the blackmailer agrees to stay silent about the victim’s extra-marital affair; and
- where the blackmailer threatens to beat up the victim unless he is paid.
Going back to our literal definitions of the terms, the former case would be considered “blackmail” while the latter would technically be considered “extortion.”
Where the blackmailer threatens to reveal a secret that will result in hatred contempt or ridicule, there must be actual evidence that revealing a secret could be harmful; the victim’s opinion, feeling or sensitivity towards the revealing of the information is insufficient.
A New York case, People v. Homsey, demonstrates this crucial condition. There, a woman claimed that a blackmailer threatened her by telling her that he would send certain compromising and potentially embarrassing photos to her father’s place of employment and her school if she didn’t pay him a sum of a few hundred dollars. The court held that to label the perpetrator’s activities as blackmail, the woman needed to describe or show the photos to the grand jury. By showing the content, she would be proving that the content of the photos would cause her embarrassment, ridicule, or mockery. If the pictures were objectively innocuous or innocent, there could be no conviction of blackmail even if this person would be willing to pay to avoid having the information released.
Punishment for Blackmail
Another aspect of blackmail that distinguishes it from ordinary theft crimes involves the way it is punished. Typically, under modern statutes, theft crimes are punished based on the value of the property stolen. For example, in Arizona, theft of property of goods or services valued at $25,000 or more is a class two felony while theft of property of goods or services valued at less than $1,000 is a class one misdemeanor. In contrast, blackmail, called extortion, is a class four felony regardless of the amount solicited or paid, while a threat to cause physical injury increases the crime to a class two felony. (Class four felonies carry a presumptive sentence of two and a half years while class two felonies carry a presumptive sentence of five years.) In other words, blackmail is punished more based on the level of violence or potential for physical harm implied in the threat (as is typical of violent crimes like robbery or assault) than the amount of money sought or received.
An economist approaching the fiscal ramifications of blackmail once wrote, “Blackmail, like pornography, is difficult to define, but you know it when you see it.” Though amusing, this statement isn’t entirely accurate. In their criminal codes, states have defined blackmail by creating certain statutes listing the elements that when satisfied, demonstrate that blackmail has been committed.
 See, e.g., Scooby Axson, “Report: Accuser Discussed Blackmailing Ezekiel Elliott with Sex Tapes”, Sports Illustrated, (August 2017).
 State v. Garcia, 227 Ariz. 377, 258 P.3d 195 (Ct. App. 2011)
 Mitchell N. Berman, “The Evidentiary Theory of Blackmail: Taking Motives Seriously,” 65 U. Chi. L. Rev. 795 (1998)
 James Lindgren, UNRAVELING THE PARADOX OF BLACKMAIL, 84 Colum. L. Rev. 670 (1984)
 N.Y. Penal Law § 155.05 2(e); Wyo. Stat. Ann. § 6-2-402
 N.Y. Penal Law § 155.05 2(e).
 People v. Spatarella, 34 N.Y.2d 157, 356 N.Y.S.2d 566, 313 N.E.2d 38 (1974); People v. Garland, 69 N.Y.2d 144, 512 N.Y.S.2d 796, 505 N.E.2d 239 (1987)
 People v. Homsey, 90 Misc. 2d 1006, 396 N.Y.S.2d 985 (Cnty. Ct. 1977)
 A.R.S. § 13-1802 G
 A.R.S. § 13-1804
 A.R.S. § 13-702
 Russell L. Christopher, META-BLACKMAIL: Meta-Blackmail, 94 Geo. L.J. 739