Blackmail and Extortion

The first references to "blackmail" date from the sixteenth century, when Scotland made it a crime to obtain property by certain written threats of physical harm to person or property (1567 Scot. Parl. Acts, ch. 27). In 1722 the Waltham Black Act authorized the death penalty throughout the country for making certain written threats that demanded property as the price for refraining from physically endangering person or property (9 Geo. I, ch. 22, § 1 (1722) (repealed)). It was not until 1843 that Parliament finally extended blackmail to cover threats to expose evidence of embarrassing but noncriminal behavior (6 & 7 Vict., ch. 96, @ 3 (1843) (repealed)).

There were many other English statutes that did not mention blackmail but punished blackmail behavior; for example, the Elizabethan Informers' Statute (18 Eliz. I, ch. 5 (1576)) made it criminal for individuals to take money to suppress prosecutions. Further, at English common law, extortion by private citizens was punished, at least where the fear was the exposure of a crime that would lead to confinement (Lindgren, p. 674).

In the United States in 1796, New Jersey passed perhaps the first American statute prohibiting threats to expose any crime, not just a capital or infamous crime. In 1827, Illinois passed a statute prohibiting threats to expose "infirmities or failings" (Act of 1827, § 108 1827 Ill. Laws 145), sixteen years before similar threats were made illegal in England. In the influential Field Code (Proposed Penal Code of the State of New York (1865)), extortion was divided into three crimes: extortion (coercion seeking property), extortion under color of official right, and criminal coercion (seeking to compel action).

Modern American statutes vary considerably in the ways they define blackmail or extortion by a private person. Some statutes require that the threat accomplish its purpose. Under such a statute an unsuccessful threat may usually be prosecuted as a criminal attempt. But most modern statutes do not require that the extortionate threat succeed; the making of the threat is enough. The statutes also vary with regard to what must be demanded for the behavior to be illegal. Some statutes, for example, prohibit the obtaining of "property," or "any valuable thing." Many extortion or coercion statutes prohibit compelling action or inducing someone "to do or refrain from doing any act against his will" (Lindgren, pp. 676–677).

American blackmail and extortion statutes, unlike those in England, usually enumerate the types of prohibited threats. The most common are: (1) the threat of personal injury; (2) the threat to injure property (whether or not such an injury is physical); (3) the threat to accuse of a crime; and (4) the threat to expose any matter that would damage personal or business reputation or would expose the victim to hatred, contempt, or ridicule. Many other threats are prohibited under some state statutes: (1) the threat to commit any offense or any felony; (2) the threat to physically confine; (3) the threat to impair credit; (4) the threat to expose a secret; (5) the threat to strike or boycott, if a labor representative is seeking a personal payoff for not striking or boycotting; (6) the threat to give or withhold testimony; (7) the threat of a public official to take or withhold action against anyone or anything; and (8) the threat to inflict any other harm that would not benefit the threatener.

Because some of these prohibited threats often have legitimate uses, some jurisdictions give the threatener an affirmative defense that he genuinely believed that the property sought was due him or that he was only trying to right a wrong or obtain restitution. Other jurisdictions allow this "claim of right" defense only when the amount sought was previously ascertained, as with a preexisting debt. But some jurisdictions have not yet recognized the claim-of-right defense in any form.