Is blackmail a crime? A defense lawyer explains

Blackmail is a crime under federal law and every state law. Blackmail involves coercing or extorting someone to gain money, property, or services unless the victim meets specific demands. This offense is generally a felony that can carry over a year in prison and high fines.

In many states, blackmail falls under the laws of

• extortion or
• theft by coercion.

What is blackmail?

Generally, blackmail is the crime of threatening to release certain information, in order to coerce another person into taking a specific action. In this way, it is a crime of extortion.

For example, extortion defendants can be accused of threatening to:

• expose the victim’s embarrassing or wrongful conduct,
• commit an act of violence in the future, or
• damage the victim’s good name or reputation.

The threatened conduct, however, will not be performed if the victim does what the defendant wants. Usually, defendants demand money. However, defendants can also demand that someone take a specific action or refrain from doing something. It can also include sexual favors in some states.

For example: Larry sends a text message to his boss. Larry tells his boss that, if he does not get a promotion, then he will tell everyone about the boss’ workplace romance.

State laws vary

Each state has its own blackmail law. In many states, blackmail falls under a general extortion statute.¹ Under some states’ criminal law, there is a specific blackmail statute.² The differences between these state laws can be significant.

Two particularly important differences between states are:

• whether the blackmail has to be successful, with the victim complying with the defendant’s threats, and
• whether the defendant has to actually receive property through the act of blackmail.

California law

In California, for example, blackmail is a form of extortion. Note that, for the defendant to be liable for extortion in California, the victim has to actually comply with the defendant’s demands. If the victim refuses, it is not extortion. However, it can still be attempted extortion.

There are 5 kinds of extortion in California, based on the type of threat being made:

1. extortion by force or fear (Penal Code 518 PC),
2. extortion by signature (Penal Code 522 PC),
3. extortion by threatening letter (Penal Code 523 PC),
4. extortion by posing as a kidnapper (Penal Code 210 PC), and
5. extortion by a fake court order (Penal Code 526 PC).

Extortion by force of fear

Extortion by force or fear is the most general of these criminal offenses. To prove this type of offense, law enforcement in California has to show the following elements of the crime:

• the defendant threatened to:
  • use unlawful force or cause a physical injury to the victim or a third person, or cause the destruction of property,
  • accuse the victim, or a family member of the victim, of a crime, or
  • expose a secret about the victim, or a family member of the victim.
• the defendant made this threat of violence or coercion in order to obtain the victim’s consent to give the defendant money or property, or to do a specific act,
• as a result of this threat, the victim gave his or her consent, and
• the victim then did what the defendant wanted.³

Federal law

18 U.S.C. 1951, known as the Hobbs Act, applies to both public and private individuals engaging in extortionate activities that affect interstate or foreign commerce.⁴ The Hobbs Act also requires proof that the defendants obtained property from the victim: This means that defendants are not liable for extortion under the federal Hobbs Act if they threatened the victim and the victim complied with those threats under duress, but the defendant did not actually receive anything.⁵

Meanwhile, 18 U.S.C. 873 is a lower-level blackmail offense that specifically addresses the threat to reveal embarrassing, disgraceful, or damaging information about someone unless they comply with the demands.⁶

Washington law

In Washington state, blackmail also falls under the offense of extortion.⁷ However, the offense covers both successful and unsuccessful extortion attempts.⁸ Defendants in Washington can be liable for extortion and blackmail, even if the victim does not do what the defendant wants.

How is it different from extortion?

Extortion and blackmail are very similar. Many states prohibit blackmail in statutes that target extortion. The difference between extortion and blackmail is that

• extortion involves a threat of physical harm or property damage, while
• blackmail involves a threat of exposing sensitive or damaging information (whether true or not).

(In cases involving government officials abusing their authority, extortion can also involve threatening to have someone arrested without just cause.)

Because the substance of these threats is so similar, many states have criminal laws that cover both at the same time.

What are the penalties?

Different states penalize blackmail differently. However, it is generally a felony, rather than a misdemeanor.

California penalties

In California, blackmail is a form of extortion by force or fear. This type of extortion is a felony offense that carries up to:

• 4 years in prison, and/or
• $10,000 in fines.⁹

Federal penalties

Violations of the federal Hobbs Act can carry up to 20 years in federal prison. Additionally, an extortion conviction can be used as a predicate offense for other criminal statutes, most notably the Racketeer Influenced and Corrupt Organizations Act (RICO).

Meanwhile, violating 18 U.S.C. 873 carries up to one year in federal prison, up to $100,000 in fines, or both.¹⁰

Colorado penalties

In Colorado, blackmail falls under the state’s criminal extortion law. Convictions for blackmail carry between 2 and 6 years in prison.¹¹

Blackmail as a cyber-crime

One type of blackmail that is becoming more common involves threatening to publish intimate photos or videos of someone if they refuse to pay, provide more photos/videos, or comply with any other demand.

Also called “webcam blackmail,” this kind of blackmail typically happens when the alleged blackmailer lures the victim into an online relationship or manages to hack into their computer to steal the intimate material.

Are there any legal defenses?

Our criminal defense attorneys at Shouse Law Group have helped many defendants facing blackmail charges by raising the following legal defenses:

• there was no threat,
• the alleged victim knew that the purported threat was impossible for the defendant to carry out,
• the alleged victim is falsely accusing the person of a crime out of an ulterior motive,
• the defendant was not trying to coerce the alleged victim to do anything, and
• in certain states, the defendant’s attempts were unsuccessful or the defendant gained nothing.

What if the information is true?

It is not a defense to say that the information is true. Defendants who threatened to expose factually correct information can still be liable as a form of blackmail.¹²

The reason for this is simple: If it were allowed to be a defense, then anyone with a blemish in their past would be constantly subjected to a blackmailer’s attempts to obtain personal property.

Additional reading

For more in-depth information, refer to the following scholarly articles:

• Blackmail: An Economic Analysis of the Law – University of Pennsylvania Law Review.
• Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory – Texas Law Review.
• Theft by Coercion: Extortion, Blackmail, and Hard Bargaining – Washburn Law Review.
• In Defense of Keeping Blackmail a Crime: Responding to Block and Gordon – Loyola of Los Angeles Law Review.
• Blackmail as a Victimless Crime  – Brackton Law Journal.