Extortion & Blackmail

2.1 Expansion Beyond Public Officials

Modern statutes frequently remove the requirement that the offender be a public official. Many jurisdictions now classify extortion and blackmail not only as crimes against property but also as offenses against the person, because they threaten bodily or reputational harm.

2.2 Model Penal Code (MPC) Perspective

Under the Model Penal Code, offenses of extortion fall under the broader crime of “theft by extortion.” The MPC defines extortion to include obtaining or withholding property of another by threatening to:

• Inflict bodily injury;
• Commit other criminal offenses;
• Expose secrets;
• Take or withhold official action;
• Bring about a strike or boycott;
• Testify or withhold testimony as a witness in legal proceedings;
• Perform any action that would not benefit the victim but would operate as a coercive threat.

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3. Elements of the Offense

3.1 Wrongful Intent (Mens Rea)

Most jurisdictions require the prosecution to prove that the defendant acted intentionally or purposefully to obtain money, property, or another benefit. Whether labeled as “specific intent” or “purpose,” the key inquiry is whether the defendant aimed to coerce the victim through wrongful inducements.

3.2 Coercive Conduct (Actus Reus)

For extortion or blackmail charges, the actus reus is typically the making of a threat or similar coercive demand. Such threats can take many forms:

• Threat of force or violence
• Threat to reveal embarrassing or harmful information (personal or business-related)
• Threat of false accusations or legal trouble

3.3 Causation and Harm

Although actual transfer of money or property often strengthens the case, completion of the crime in many jurisdictions does not require the victim’s compliance. Often, it is enough that the threat was communicated with the specific aim to coerce or obtain property. In other words, the crime can be completed once the threat is issued, irrespective of whether the victim acquiesces.

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4. Distinguishing Extortion & Blackmail from Other Offenses

1. Robbery

   • Robbery typically involves the use of immediate force or an imminent threat of force.
   • Extortion/blackmail often centers on threats of future harm (physical, reputational, or otherwise).

2. Bribery

   • In bribery, a person offers or gives something of value to a public official to influence an official act.
   • In extortion, the focus is on a forced payment demanded by a defendant (whether or not they are a public official).

3. Larceny/Theft

   • Larceny (theft) generally requires trespassory taking.
   • Extortion relies on consent obtained through coercion rather than a trespassory or stealthy taking.

4. Criminal Threats

   • A charge of criminal threats may apply when a threat is made to intentionally place a person in fear.
   • Extortion/blackmail requires a purposeful aim to obtain something in exchange for refraining from carrying out a threat.

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5. Illustrative Scenarios

1. Reputation Threat

   • A tabloid journalist threatens to publish compromising photographs of a celebrity unless paid a large sum. Even if the celebrity’s reputation could be harmed, that threat is still unlawful and amounts to blackmail or extortion (depending on jurisdiction).

2. Threat of Physical Harm

   • A local gang member demands weekly payments from a shop owner, threatening vandalism or violence if not paid. This is classic extortion.

3. Threat of False Accusations

   • An ex-employee threatens to file a fabricated sexual harassment claim unless the employer pays a severance. The threat is a form of extortion or blackmail because the coerced payment aims to prevent imminent reputational or legal harm.

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6. Defenses and Justifications

While extortion and blackmail are serious offenses, certain defenses may arise under limited circumstances:

1. Lack of Intent

   • If the defendant lacked the requisite mens rea (e.g., they did not intend to demand money or property), there may be grounds for dismissal.

2. Duress

   • Duress defenses are rare in extortion cases but could theoretically apply if the defendant was forced by another person to make extortionate threats.

3. Consent or Legitimate Claim

   • If the accused can demonstrate that the victim voluntarily transferred the property absent any wrongful threat or that the defendant was merely pressing a legitimate debt claim in good faith, it could defeat the extortion count (though this depends heavily on the laws of the jurisdiction).

4. Misunderstanding or Ambiguity

   • In jurisdictions requiring overt or explicit threats, vague statements might be insufficient to constitute extortion unless they clearly reflect coercive conduct.

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7. Key Cases: Selected References

• United States v. Nardello, 393 U.S. 286 (1969):
  The Supreme Court recognized the broad scope of extortion, including instances where the defendant threatened to reveal embarrassing information if payments were not made.

• People v. Umana, 30 Cal. Rptr. 3d 291 (Cal. Ct. App. 2005):
  Clarified the scope of extortion under California law, emphasizing that the wrongfulness of the threat is central to the offense, not just the threatened act itself.

• State v. Harrington, 260 P.3d 31 (Wash. Ct. App. 2011):
  Illustrates the principle that even intangible advantages—like avoiding a lawsuit—can constitute property or “something of value” for extortion purposes.

• Model Penal Code § 223.4 (Theft by Extortion):
  Though not a case, the MPC commentary is highly influential on how many state laws define and interpret extortion.

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8. Practical Considerations

1. Evidentiary Challenges

   • Proving a threat can hinge on witness testimony, recorded communications, or digital evidence (text messages, emails, etc.). In blackmail cases, direct evidence of the threat is often crucial because the victim must show what was demanded and how it was demanded.

2. Overlap with Civil Litigation Threats

   • Attorneys sometimes threaten to pursue aggressive civil claims unless a settlement is reached. While parties can lawfully negotiate disputes, crossing the line into extortion occurs when threats are made in bad faith or go beyond the scope of legitimate negotiation.

3. Sentencing and Penalties

   • Extortion and blackmail convictions typically carry potential penalties of several years in prison, substantial fines, and restitution orders. Aggravating factors include prior convictions, involvement of organized crime, or threats of serious bodily harm.

4. Reputational Damage to Victim

   • Even an unfulfilled threat can cause permanent harm to a victim’s reputation or emotional well-being. Courts and legislators regard such psychological harm as a serious public interest concern.

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9. Conclusion

Extortion and blackmail statutes protect both property rights and personal autonomy by criminalizing coercive methods of obtaining something of value. Although rooted in common law concepts of official misconduct, modern statutes have broadened these offenses to apply across contexts, reflecting society’s interest in prohibiting wrongful threats, whether physical, reputational, or economic. Key to any prosecution is showing that the defendant intentionally sought to coerce the victim into handing over money, property, or other advantages.

By recognizing how extortion and blackmail overlap with—and differ from—other crimes such as robbery, bribery, and theft, legal practitioners can analyze each element with precision. With careful attention to statutory language, relevant case law, and available defenses, a thorough grasp of extortion and blackmail is essential for criminal law practice.