Blackmail is fairly common. Many continue to think it’s harmless or deserved, but this is far from the truth. Blackmail can occur in several scenarios. For instance, some people enter into relationships with others on the internet and share intimate pictures and videos via webcam. Eventually, one party may turn against the other by asking them to send money or risk exposing their private information.
In other situations, a person may obtain some information about another party and then leverage that piece of information to get money or something of value from the victim. This can be distressing for the party being threatened, and they may be uncertain of whether criminal action can be taken.
So, in this article, we will analyze whether or not blackmail is a crime. We will also discuss state and federal laws on blackmail, compare it to extortion, and examine the possible defenses in cases of blackmail.
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What Is Blackmail?
Blackmail is a crime under state and federal laws. It can be defined as obtaining or trying to obtain money, goods, services, or any other valuables from a person by threatening to reveal something incriminating, embarrassing, or damaging.
Basically, one party with detrimental information threatens to cause the other party embarrassment or financial loss if they don’t comply with their demands. The threat may be in the form of:
- Falsely accusing a person of a crime
- Threatening to report a person’s criminal activity to the police or the public
- Revealing personal information that may cause the victim harm
- Revealing the victim’s personal financial information
The person on the receiving end of this threat usually fulfills the wishes of a blackmailer to avoid the ugly consequences. Usually, they have to part with money, property, or any other valuable item in their possession.
Recently, the internet has given rise to cyber-blackmail. In this situation, a person may hack into another person’s cell phone to steal personal information, then use it to threaten the victim into doing something against their will.
Blackmail is generally considered a felony and may carry more than a one-year jail term.
Blackmail vs. Extortion: Key Differences
Blackmail and extortion are similar offenses under criminal law. They both involve obtaining money or valuables from someone illegally. Some states, such as California, place these two offenses in one category with the same punishment. However, they have specific characteristics that distinguish them.
While blackmail is the act of threatening to release certain embarrassing information to coerce another person into taking a specific action, extortion is the use of force or the threat of physical harm to make someone part with money, property, or valuables. So, blackmail involves the use of sensitive information, while extortion makes use of physical force.
The crime of extortion can also happen when a government agent uses his position or authority to demand some financial gain from citizens. For example, if a police officer threatens to have a person detained without due cause unless the person pays a specific amount, this is deemed extortion.
Blackmail is strictly based on information. The veracity of the information the blackmailer possesses is not relevant. It is also not important that the information with the blackmailer relates to an illegal act of the victim. Using it to threaten the victim for financial gain makes the blackmailer liable for the criminal offense of blackmail.
State vs. Federal Blackmail Laws
Blackmail is a criminal offense under both state and federal laws. The context of federal and state laws regarding blackmail is often similar. However, a person will be convicted under state law in a simple blackmail or extortion case. While some states treat blackmail as a separate offense, others deem it a subset of coercion and extortion, and others refer to both extortion and coercion as blackmail.
For example, California law categorizes blackmail as a form of extortion by force or fear. Both crimes include threatening to accuse a person of a crime, exposing them to embarrassment or ridicule, or coercing a person against their will. Like extortion, blackmail is a felony and attracts up to four years in prison and/or $10,000 in fines.
In New York, both offenses are called “theft by extortion.” There’s a more specific need to show that the blackmail induced the victim to give up property. This can include money, property, patents, computer games, technology, etc.
In Kansas, blackmail is a crime against the victim rather than a theft. So, it is often enough that a person threatens to reveal embarrassing pictures or news about the victim, or someone close to the victim, in exchange for something of value.
In Wyoming, both offenses are referred to as blackmail. In Tennessee, blackmail is an offense against property, while extortion is an offense against a person and is considered a Class D felony.
In Arizona, blackmail is categorized as extortion. It is a Class 4 felony regardless of the amount solicited or paid, while a threat to cause physical injury — actual extortion — is a Class 2 felony.
However, federal laws state under 18 U.S.C. § 873 that a person who demands or receives money or something of value based on threats of informing or not informing the authorities has committed the offense of blackmail. For instance, if a government worker knows that a supervisor has committed fraud at work and threatens the supervisor with paying him a sum of $20,000 in exchange for his silence, he is guilty of blackmail.
Also, blackmail that crosses state boundaries or involves interstate communication channels is usually prosecuted at the federal level. Such an offense can be prosecuted as blackmail with wire fraud.
Several offenses relate to blackmail and extortion in the federal blackmail statute, and they include:
- Threats against presidents and successors
- Threats against former presidents
- Extortion by United States employees
- Kickbacks from public works employees
- Interstate communication
- Sending threatening mails
- Threatening communications from a foreign country
- Threats and extortion against foreign officials
- Receiving the proceeds of extortion
Possible Defenses To Blackmail Charges
If you are facing a blackmail charge, there are several defenses your criminal defense attorney may come up with to mitigate the offense and lessen your punishment. Here are a few:
— Lack Of Intent
The first requirement a prosecutor must prove in a criminal charge is intent. The prosecutor must show that you intended to blackmail the person. So, an attorney can counter a blackmail charge by showing that the threat is unreasonable and shouldn’t have been believed, or that it cannot in any way cause harm to the victim.
— Lack Of Evidence
If the defendant issued the threat during a conversation with the victim and there was no third party to witness this conversation, a defense attorney can claim the evidence is insufficient to prove there was a threat.
However, this can only be used where there are no possible recordings or text messages of the conversations.
There are several other defenses, such as;
- Lack of legal capacity. A defendant can claim that he was intoxicated or drunk when issuing the threat.
- The victim knew that there was no possible way for the defendant to carry out the type of threat issued.
- The victim has an ulterior motive for accusing the defendant of blackmail
- There was no threat at all.
- The victim knew the defendant had insufficient material or information to coerce them into taking action.
An attorney can also claim that the victim was unsuccessful or gained nothing. However, most states also have a charge for attempted blackmail or extortion, so it is usually not an option. The right defense strategy will be determined by your attorney based on the circumstances.
Penalties For A Blackmail Conviction
Blackmail under the federal statute is a misdemeanor offense that carries up to one year in federal prison or a fine. In some cases, a party may get both. Blackmail has the shortest possible charge under Chapter 41 of Title 18 of the U.S. Code. However, the actual sentence may be longer as it is rarely charged alone.
Blackmail usually follows some type of interstate or wire communication, such as threatening emails, potentially increasing the sentence. For example, if you are convicted, mailing threats to blackmail or extort a person may result in 20 years in federal prison.
However, a first-time offender facing a basic blackmail charge may get off without prison time. Instead, the judge may give alternative sentences such as community service, probation, and fines.
In California, blackmail and extortion are classified as felonies. It can attract up to four years’ imprisonment and a fine of $10,000. Unsuccessful blackmail will be classified as attempted blackmail.
In Michigan, a person may face up to 20 years’ imprisonment or $10,000 in fines. In Colorado, a blackmail conviction may mean between 2 and 6 years of imprisonment.
Missouri considers blackmailing a class E felony that may attract up to four years of incarceration. Extortion and blackmail attract one to ten years of imprisonment or confinement in jail for up to 12 months and/or a fine of up to $2,500.
Other states hold similar positions that blackmail and extortion are felonies. However, a judge usually works with discretion despite the penalties written in the statutes. So, in giving judgment, the judge will consider the defendant’s:
- Criminal record
- Character testimony
- Any extraordinary factors in the case
Depending on how an attorney pleads a case and the defendant’s situation, the sentence may be lighter or heavier.
The Bottom Line
Blackmail is illegal and is a criminal offense under state and federal law. Under federal law, basic blackmail is considered a misdemeanor and can attract up to one year of imprisonment and fines. However, it is usually charged along with other offenses, aggravating the sentence to up to 20 years’ imprisonment.
Under most state laws, blackmail is classified as extortion. However, they are different. Extortion requires the use of force or physical harm. In some cases, the defendant can be charged with interfering with the victim’s movement.
Blackmail, on the other hand, is when the defendant uses damaging information they obtain to threaten the victim into doing something that would result in some sort of loss.
Regardless, both offenses tend to attract the same penalty under state laws. They are considered felonies and attract 2–10 years of imprisonment.
Even when a blackmail attempt is unsuccessful, a person can still be charged with attempted blackmail, which may be a felony or a misdemeanor, depending on how serious the situation is.
If you have been charged with the crime of blackmail, getting yourself good legal advice from a law firm is crucial. A criminal defense lawyer can come up with defenses such as lack of evidence, lack of intent, etc. to fight your case. This can help you get a lighter sentence, especially if you are a first-time offender.
Frequently Asked Questions
What are the three types of blackmail?
Blackmail doesn’t necessarily have strict categories, as it can occur under any circumstance. However, it can be broadly divided into three:
Coercion: The means of threatening someone with physical force to make them do something illegal. Blackmail by coercion doesn’t necessarily involve asking the victim for money. Instead, the blackmailer may threaten the victim into using their position to do something illegal so that the blackmailer may enjoy some benefits. For example, a person may threaten to physically attack another person if they don’t steal from their workplace.
Extortion: The means of threatening someone through brute force or threat to their freedom for monetary gain. Extortion is an attempt to make another person part with their money, property, or other valuables with the threat of violence.
In California, blackmail, in the strictest sense, falls under extortion. Blackmail means threatening a person with sensitive information in exchange for financial gain.
Under federal law, a government official who threatens others with authority derived from their position in exchange for some gain is guilty of extortion.
Commercial Pressure: A form of blackmail whereby a person threatens a corporate organization with information likely to ruin its public image in exchange for something. It can happen as a form of coercion or extortion, but in this case, it is done to a corporate body.
What can the police do about blackmail?
The police are responsible for maintaining law and order, so they are charged with arresting and prosecuting criminals involved in blackmail.
Suppose you report a blackmail case to law enforcement. In that situation, they will launch an investigation to find the suspect, especially in the case of cyber-blackmail or when the blackmailer is anonymous.
Usually, the police will also try to gather new proof against the perpetrator through recordings and surveillance to ensure they build a strong case.
What type of blackmail is illegal?
All types of blackmail are illegal. Blackmail is a serious crime generally classified as a felony across state lines and a misdemeanor that can attract prison time at the federal level.
There’s no such thing as legal blackmail. Any scenario in which someone threatens another with what they know or with physical force in exchange for a benefit or service is illegal.
However, where a person makes an accused turn themselves in, the law will not consider that a form of blackmail so long as the former did it in good faith without expecting any personal benefit.
What is the punishment for blackmailing someone?
The penalty for blackmail depends on the state. The punishment in California is 4 years’ imprisonment and up to a $10,000 fine. In Texas, the punishment depends on the value of the property the defendant stole from the victim.
A gain of more than $300,000 is considered a first-degree felony, and the individual can be sentenced to 5 to 99 years’ imprisonment plus a fine of up to $10,000. Under Nevada’s penal code, blackmail is a Class B felony and may attract a 1 to 10 year prison sentence and/or $10,000 in fines. You may also be required to pay restitution.
However, blackmail is also a federal crime and can be considered a misdemeanor. In this instance, it attracts about one year in federal prison and fines, but blackmail is rarely ever charged alone. Instead, you are often charged with other white-collar crimes, such as wire fraud, that may lead to a 20 year prison term.
