November 3, 2023
The term “blackmail” may bring to mind late-night film noir classics or daytime soap opera plots. In the 1997 movie LA Confidential, for example, a corrupt magazine publisher and pimp blackmail businessmen by photographing them with prostitutes. And in the 2008 movie Burn After Reading, the Coen Brothers (perhaps the modern masters of movies about blackmail), tell a story of a bumbling personal trainer played by Brad Pitt who finds sensitive information in a gym locker about a CIA analyst and attempts to blackmail him with it.
For all the attention given to blackmail in the movies and on TV, blackmail is a serious crime in real life. While blackmail is a colloquial term referring to attempting to get a victim to pay you or do some other act in return for either doing or not doing something (e.g., sending photos of you in an extramarital affair to your spouse), the legal term for this act in California is extortion, and several state criminal laws prohibit extortion and provide criminal penalties for their violation.
The California Penal Code and Blackmail/Extortion
Although the term “blackmail” might suggest that an offender is going to expose tawdry secrets if they are not paid, extortion as a crime is more widely defined and generally involves any demand for payment or consideration in response to a wrongful threat (e.g., while we’re on the topic of classic films of the relatively recent past, a demand for a ransom of $3.7 million, which if not paid, will result in an LA city bus exploding the moment it drops below 50 miles per hour).
Pursuant to the California Penal Code, extortion is defined as “the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” The term “consideration” in the law generally refers to anything of value, and Penal Code section 518 specifically indicates that “consideration” for the purposes of the extortion laws includes “sexual conduct” or “an image of an intimate body part.”
Thus, while we often think of extortion/blackmail as involving a demand for a payment of money, there is no requirement that a financial payment be involved. Extortion could involve a demand that a person hand over other types of property or do an act, which could include a sexual act or sending a nude photo.
Note also that a person may be charged with extortion where, instead of obtaining property or other consideration, the object of the extortion scheme is to obtain “an official act of a public officer,” which could mean a demand that a city council member vote a certain way or that a city inspector provide a favorable report.
With respect to the element that this transfer or property or other consideration be “induced by a wrongful use of force or fear,” examples of the type of fear induced under the extortion law include the following types of threats:
- To do an unlawful injury to the person or property of the individual threatened or of a third person
- To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime
- To expose, or to impute to a person “a deformity, disgrace, or crime”
- To expose a secret affecting a person
- To report a person’s immigration status or suspected immigration status
Examples of Extortion/Blackmail in California
The acts that may form the basis of extortion can take a wide variety of forms as we’ve already seen in the film examples above. Extortion could be simple words said over the phone or in-person to someone demanding payment by use of force or fear (e.g. “Nice trophy shop here, be a shame if anything happened to it…”). Extortion could also be in the written form, such as through a letter, email, or text message (e.g., a coworker sending you an email from an anonymous account threatening to tell your boss that you embezzled funds from the company unless you pay that coworker $10,000). Ransomware demands also qualify as extortion in California.
Note that there is no requirement that the extortion actually be successful – as in that the scheme actually works by having the victim give in to the extortionist’s demands – for the crime of extortion to be charged, as prosecutors may bring attempted extortion charges. Also, while extortion often involves threats of force or other negative action to be taken against a victim, it is the threats themselves that form the basis of the extortion charge and actually carrying those threats out is not necessary for an extortion charge. Furthermore, an agreement between two or more people to try to extort another could result in conspiracy charges.
Penalties for Extortion/Blackmail in California
A person charged with extortion may face imprisonment for up to 2 to 4 years. Extortion may be charged as a misdemeanor or felony in California. A defendant may also face a $10,000 criminal fine and probation.
Defenses to Extortion/Blackmail
As with other criminal statutes, every element of an extortion charge must be proven beyond a reasonable doubt. Thus, the sufficiency of the evidence often comes into play in defending against an extortion charge.
Because an extortion charge may often be based on words exchanged between parties, significant questions can arise regarding whether a perceived extortion attempt was less of a “demand” and more of a request. Similarly, skilled defense counsel can raise doubt over whether there was any substantial force or threats involved with the demand, or whether such alleged threats were misperceptions.
In any case, if you believe you may be under investigation or charged with extortion, it is important to work with skilled defense counsel to protect your rights and present your strongest defense.
Speak with an Experienced White Collar Crimes Lawyer
The time to seek experienced counsel from a skilled white-collar defense attorney is at the first signs of a potential government investigation, enforcement action, or prosecution. Often, the first steps in responding to a potential government proceeding are the most critical in setting the course for an ultimate outcome that defends one’s interests, reputation, and, in some cases, freedom. Contact our office to speak with an experienced white-collar defense attorney regarding your situation today.