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.
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.
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.
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:
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.
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.
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).
