#17086 - Blackmail Mpc And Non Mpc Approaches - Criminal Law

BLACKMAIL

Common Law - look at statute (no usual MR, if no MR, read it in)

3 questions when analyzing a statute:

(1) what threats are covered (accuse of crime, reveal secret, commit violence)

(2) to obtain what (property/something of value/act against another's will)

(3) is there a claim-of-right defense (defense saying that the thing to be obtained is rightfully owned) (in statute or interpreted by courts)

MPC 223.4 approach

• 7 threats

  • (1) inflict injury/other crim offense - "inflict bodily injury on anyone or commit any other criminal offense"

  • (2) accuse of crime - "accuse anyone of a criminal offense"

  • (3) expose secret - "expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute"

  • (4) take/withhold action as official - "take or withhold action as an official, or cause an official to take or withhold action"

  • (5) start/continue strike - "bring about/continue a strike if the property is not demanded/received for the benefit of the group"

  • (6) testify/withold testimony - "testify or withhold testimony with respect to another’s case"

  • (7) catch-all/harm not beneficial - "inflict any other harm which would not benefit the actor"

    • Note: should interpret benefit narrowly to exclude psychic/cathartic benefit

• Obtain property only

• Affirmative claim-of-right defense for threats 2,3,4 (accuse crime, expose secret, take act as an official)

  • Property obtained by threat is honestly (subjective) claimed as restitution or indemnification for harm done

Two examples of statutes

• Example of statute - VT statute

  • (1) Maliciously (2) Threaten to accuse of crime or offense OR cause injury to person or property (3) with intent to extort property or act against the will

  • No claim-of-right defense

  • Harrington: attorney "maliciously" arranged for woman to sleep with client's husband, wrote letter threatening to accuse him of adultery (and possibly cause injury to his person due to reputational harm) in order to extort money in the form of settlement in the divorce action

    • Because no claim-of-right defense, cannot entertain argument that he was merely trying to get what his client rightfully deserved

    • Convicted of blackmail

• Example of statute - NY/no claim of right defense

  • Fichtner: even though store managers were trying to get man to pay the value of what was thought to be stolen, no defense and convicted

POLICY:Why punish?

• Wrongful to make someone do or give up something against their will > reduces human autonomy

• Lack of closure and creates relationship of dominance-subordination

• Deter people from digging up dirt on others to use to their advantage (unless whistleblower or consumer information > information beneficial to the public interest)

• Incentivize reporting of blackmail and crimes (instead of profiting off them)

• Prevent vigilante justice that usurps government power to punish/stop harm and that plays with the public interest (profiting from something against society's interest)

  • Government can "extort" through plea bargaining negotiations because involves public official acting in public interest, ensures closure, claim of right, plea bargaining benefits rather than harms defendant

• RESPONSE: law should not step into private situations, sometimes threats are all the power people have (consumer threatening big companies)

Note: easy to tweak language to avoid blackmail charge (if you have a lawyer) - not make demand to obtain something (fails element 2), only state what information is possessed and wait for an offer

POLICY Claim of right defense?

• Claim of right defense in common law can be subjective OR objective and subjective (look at statute)

• Claim of right defense GOOD:

  • allows people to get rightful property back quickly

  • formal process is slow and can be unjust (implicit biases in how prosecutors charge - who and what)

  • still discourages extortion because people still have to go through the legal process and raise the claim-of-right defense

• Claim of right defense BAD:

  • Defense discourages people from reporting bad behavior

  • Defense encourages people to take matter into their own hands (bad) when they should go through formal system

Summary-