Fundamentals of Criminal Law by Adam J. McKee

Blackmail is like someone finding out your secret and then saying, “Give me what I want, or I’ll tell everyone.” It’s when a person uses information they have on someone else, which could be embarrassing or damaging, to get money, favors, or something else from them. It’s like being trapped between a rock and a hard place: either you give in to the demands, or your secret gets exposed.

The Harm Prevented by Anti-Blackmail Laws

Laws against blackmail aim to prevent several harms:

  1. Personal Harm: Victims of blackmail can suffer from anxiety, depression, and even financial ruin.
  2. Social Harm: Blackmail can destroy trust in relationships and communities.
  3. Economic Harm: It can disrupt fair business practices and create an uneven playing field.
  4. Legal Harm: Blackmail undermines the justice system, as victims might refrain from reporting crimes to avoid exposure.

By outlawing blackmail, the legislature aims to protect individuals’ privacy, mental health, and financial stability. These laws also strive to uphold fairness in economic and social dealings.

Classification of Blackmail

Most legal codes classify blackmail as a felony. This is because the potential harm from blackmail can be significant, affecting not just individuals but also businesses and societal structures.

Blackmail in Broader Criminal Categories

Blackmail is primarily a crime against the person because it directly impacts an individual’s psychological well-being and autonomy. However, when it involves demands for property or money, it also falls under crimes against property. In rare cases, if blackmail involves coercing someone into sexual acts, it could intersect with sexual crimes.

Historical Perspective of Blackmail

Ancient and Medieval Times

Early legal systems, like the Code of Hammurabi, didn’t directly address blackmail but had laws against theft and false accusations (Roth, 1995). In medieval England, extortion, a cousin of blackmail, was recognized as a crime, especially when officials misused their power to extract money (Holdsworth, 1903).

Common Law and Blackstone’s Contribution

Under English common law, extortion and blackmail began to be distinguished. Blackstone, in his “Commentaries on the Laws of England,” described extortion but didn’t explicitly define modern-day blackmail (Blackstone, 1765). However, his discussions on privacy and reputation laid the groundwork for understanding the harms of blackmail.

The Rise of Modern Blackmail Laws

In the 19th and 20th centuries, as privacy became increasingly valued, specific laws against blackmail were developed. These laws recognized the psychological and social harm of threatening to reveal personal information.

Model Penal Code Definition of Blackmail

Understanding Blackmail Under the MPC

The Model Penal Code (MPC), a significant influence in modern American criminal law, defines blackmail, commonly referred to as extortion, under Section 223.4. According to the MPC, a person commits extortion by purposely obtaining property of another by threatening to:

  1. Inflict Bodily Injury: This includes threats of physical harm to the victim or someone else.
  2. Commit Criminal Offense: Threatening to commit any crime that could harm the victim.
  3. Accuse of Crime: Using the threat of accusing someone of a crime to obtain property.
  4. Expose Secrets: Threatening to expose a secret which could subject a person to hatred, contempt, or ridicule.
  5. Take or Withhold Action as Official: Involves a public official wrongfully using their influence or power.
  6. Bring about Strike or Boycott: When someone threatens collective action for personal gain.

This comprehensive definition under the MPC captures the essence of blackmail as a crime that utilizes threats to infringe upon another person’s property rights and personal autonomy.

Defenses to Blackmail in the MPC

Possible Legal Defenses Against Blackmail Charges

The MPC recognizes certain defenses against blackmail:

  1. Duress: A defendant may argue they were coerced or threatened into committing the blackmail.
  2. Withdrawal: If the defendant withdrew the threat and rectified the situation before the crime was completed.
  3. Lack of Intent: Arguing that the alleged threat wasn’t intended to obtain property.

Each defense is context-dependent and requires careful legal examination to establish validity.

Elements of Blackmail

To understand blackmail legally, it’s essential to look at its elements:

  1. Mens Rea (Intent): The perpetrator must have the intention to obtain property through threats.
  2. Actus Reus (Act): There must be an actual act of threatening to harm or expose.
  3. Concurrence: The intent and act must coincide in time.

Understanding these elements is crucial for grasping the legal framework surrounding blackmail.

Extortion vs. Blackmail

When discussing criminal law, it’s crucial to distinguish between similar but distinct concepts. Two terms that often cause confusion are “extortion” and “blackmail.” While they are sometimes used interchangeably, they have different legal implications and characteristics. Understanding these differences is essential for law students and legal practitioners alike.

Extortion: The Broader Coercive Crime

Extortion is a broad term encompassing various forms of coercion. It typically involves obtaining money, property, or some advantage through the use of threats. Here are some key features:

  • Scope of Threats: Extortion threats can range from physical harm to property damage, and even include threats to take or withhold action as a public official.
  • Involvement of Public Officials: Often, extortion is associated with misuse of public office. An official might threaten to use their authority unlawfully to obtain something of value.
  • Legal Applications: Extortion is applied in a wide range of scenarios. For instance, threatening to harm someone unless they pay a sum of money falls under extortion.

Blackmail: The Art of Reputation-Based Threats

Blackmail, while similar to extortion, has a more specific focus. It involves the use of threats to expose information:

  • Focus on Information: The crux of blackmail is the threat to reveal damaging, embarrassing, or incriminating information about an individual.
  • Personal Context: Blackmail often occurs in situations where the perpetrator and victim know each other, and the perpetrator leverages personal or sensitive information.
  • Threats to Reputation: In blackmail, the harm threatened is typically reputational or social harm, as opposed to physical harm.

Key Differences

While both crimes involve threats and coercion, the main differences lie in the nature of the threats and the contexts in which they occur. Extortion covers a broader range of coercive actions, often involving physical or financial harm, and can include misuse of official power. Blackmail, on the other hand, centers around the use of sensitive information as leverage to gain something of value, primarily causing reputational harm.

Legal Implications

Legally, these distinctions matter. Depending on the jurisdiction, extortion and blackmail can be charged differently, carry different penalties, and require different elements of proof. For law students, understanding these nuances is critical for accurately interpreting and applying criminal law statutes.

While extortion and blackmail are related concepts involving coercion and threats, their legal definitions and applications differ significantly. Recognizing these distinctions allows for a clearer understanding of criminal law and more accurate legal practice.


  • Model Penal Code, § 223.4 (1985).
  • Blackstone, W. (1765). Commentaries on the Laws of England.
  • Holdsworth, W. S. (1903). A History of English Law.
  • Roth, M. T. (1995). Law Collections from Mesopotamia and Asia Minor.


Modification History

File Created:  07/17/2018

Last Modified:  07/17/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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