What is Blackmail? What’s the Punishment? Defenses?

Blackmail is coercing or extorting someone to, most commonly, gain money, but it also may be to gain services or property unless that someone (the victim) does something.  This offense is generally a felony and can involve high fines.

The term blackmail is often used interchangeably with extortion, but they are distinguishable.  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 California, extortion can be prosecuted under Penal Code §§ 518 (extortion by force or fear), 522 (extortion by signature), 523 (extortion by threatening letter), 210 (extortion by posing as a kidnapper), and 526 (extortion by fake court order).

Penalties can be up to four years in state prison and up to a $10,000 fine.  It should be noted that the time in custody would be served in county jail under Penal Code § 1170(h) unless the person is a registered sex offender and then the person would serve such prison time in a California state prison instead.

As mentioned above, blackmail is the threat of releasing certain information in order to coerce someone else to taking a certain action.  It can be a threat to release embarrassing (most commonly a forbidden romance) or wrongful conduct (whether true or false), to commit an act of violence in the future, or to damage the other person’s good name or reputation unless the victim does something, which is usually pay certain money.  It could also be to promote someone or give someone certain property.

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.

One type of blackmail that is becoming increasingly 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.

As attorneys, we are often victims of blackmail by clients (often after the case is done with a good result) who will demand a refund of legal fees or threaten to post a negative review online, damaging our reputation.  However, this surely also happens to other professions that maintain a Yelp or Google page whereon reviews can be posted.

Under California Penal Code § 518, the crime may be prosecuted if the victim responds to the threat by doing what the defendant demanded, i.e., the victim pays the defendant, and then defendant did what the victim wanted, which usually means he or she did not follow through with the threatened conduct. 

It is not a defense for defendant to say that the information is true.  Defendants who threatened to expose factually correct information can still be liable as a form of blackmail. See, i.e., State v. Greenspan (1989) 92 N.C. App. 563. 

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.

Under federal law, there is 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. 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. Schneidler v. National Organization for Women, Inc. (2003) 123 C. Ct. 1057.  The Hobbs Act has been applied to prosecute a wide range of activities including robberies of Brinks trucks.  Punishment for a Hobbs Act violation can be up to 20 years in federal prison.

It should also be noted that a federal Hobbs Act conviction or such conduct can be used as a predicate offense for prosecution under other criminal statutes, most notably the Racketeer Influenced and Corrupt Organizations (RICO) Act.  

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.  Punishment for violating § 873 is up to 12 months in federal prison and /or a fine of up to $100,000.