Criminal Law


By Janet Portman, Attorney
Blackmail is considered a great legal puzzle, because it makes criminal a threat to do something that in itself is not illegal. Why is that so?

Broadly speaking, blackmail is threatening to do something that would not be illegal if one just did it. The crime of blackmail is centuries’ old and an offense in every state. But if the act itself is not illegal, why is the threat to do it criminalized? For example, if I threaten to tell your wife that you’re having an extramarital affair, my threat may be criminal blackmail. But it wouldn’t be criminal if I were to tell your wife, without the threat. What makes the threat illegal [blackmail]?

Legal scholars have grappled with this question without reaching agreement on why the threat to do something that is not illegal is itself a crime. After touching briefly on the popular explanations of why blackmail is a crime, this article takes a look at the four general ways that states define blackmail.

Why Is Blackmail a Crime?

One way to define blackmail is to focus on the element of coercion implicit in the threat. But it's difficult to defend this position when you look at examples of everyday business and personal dealings. For example, saying “I’ll sue you unless we settle this matter,” “Give me a raise or I quit,” or “Agree to these collective bargaining terms or we’ll strike” all involve high amounts of coercion, yet they are not blackmail. They’re hard bargaining. Why aren't these examples of coercion considered blackmail?

Here are three other ways of understanding the crime of blackmail – you decide whether they are satisfying, or just as confounding as the theory that relies on the element of coercion.

Blackmail as a Crime Against the Threatened Person

Some theories make blackmail a crime because it victimizes the person being threatened. Viewing the threatened person as a victim makes blackmail almost like extortion, because victims are people who are on the receiving end of a criminal act (the threat). But on closer examination, this explanation might not hold up. Take our philandering husband, for instance. He may well decide that paying the money is preferable to having his affair made known to his wife; indeed, he’d be more a victim were she to learn about it. In this situation, he’d consider himself worse off (and not a victim) if he did not succumb to the threat.

Blackmail as a Crime Against Third Parties

Another way to understand blackmail is to view it as a triangular balance of power, among the threatener, the subject, and a third party whose power has been co-opted by the threatener. This makes blackmail not a crime against the recipient of the threat, but against whatever party would have received the blackmailer’s information had the threat not been made. Here, the blackmailer’s acts either violate the blackmailer’s moral or legal duties towards the third party; or the blackmailer is usurping the third party’s power to regulate or discipline the threat, for the personal gain of the blackmailer. Here are some examples of this theory:

  • Our duty to report crimes. Threatening to report a crime unless one is paid may be blackmail because we have a moral (and legal) duty to report crime to the authorities. The third party in this scenario is the police and society in general. The blackmailer is “stealing” their power to act on the information, using it to extract payment for silence. But the problem with this theory is that it’s not at all clear or accepted that reporting all crime is legally required, let alone morally necessary.
  • Usurping others’ power to use or receive the information. Under this theory, the victim of a blackmail scheme is not the recipient of the threat, but the third party who has an interest in the information. Here, the blackmailer is leveraging the power of the third party without permission. For example, “Pay me or I’ll call a strike” leverages the power of the union to the benefit of the individual blackmailer. By contrast, “Agree to these bargaining terms or we’ll strike” involves no usurpation of the union’s power.

Blackmail Hurts Society

Perhaps the simplest theory behind the crime of blackmail is to say that it’s a waste of social resources (as distinct from being morally wrong). Imagine the cost to society if we were to allow all manner of blackmailing – the cost to keep secrets would be prohibitive but necessary, because would-be blackmailers would not be deterred by the prospect of a criminal charge. Under this approach, not all blackmailing is wrong (only that which costs too much). Needless to say, this approach is highly theoretical (how does one measure cost and benefit?) and not too popular.

How States Define Blackmail

Although every state has a blackmail statute, they vary widely in two respects: the range of demands, or threats, that are criminalized; and the exceptions that make the conduct not criminal. Here’s a run-down.

  • Blackmail includes a broad range of threats, with many exceptions. Most states take this approach, including threats that demand property or money, as well as coercing the victim or a third party to take a particular action. Exceptions are numerous, such as excusing the person who acts (threatens) only to make the other side correct a wrong, stop misbehaving, or return stolen property.
  • Blackmail includes a broad range of threats, with few exceptions. Here, a very narrow group of threateners are given a pass: they are the ones who act only in order to get restitution for a harm done or to get paid for services rendered (“Repay the money you took or I’ll sue,” or “Pay your bill or I’ll file in small claims court”).
  • Blackmail as threats to gain property only, with few exceptions. Here, the demand is for property, excepting only those who demand restitution for harm done, or payment for services rendered or property given.
  • The outliers. A few states, who define blackmailing threats either broadly or narrowly, provide for no exceptions at all.

Needless to say, to understand your state’s approach to the crime of blackmail, you’ll need to look closely at the statute and the cases that have interpreted it.

For more details on how individual states approach the crime of blackmail, see Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory, 89 Tex. L. Rev. 291 (2010).

Questions for Your Attorney

  • I stole money from my roommate, and his father is threatening to turn me in unless I pay it back. Is this blackmail?
  • My child’s teacher thinks I’m abusing my son, and has threatened to report me unless I agree to counseling. I am innocent. Is this blackmail?
  • My business partner has threatened to dissolve the partnership unless I agree to give him a larger share of the profits. Is this blackmail?
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