Testing Competing Theories: Blackmail
This chapter examines the offense of blackmail. It first summarizes the competing theories of blackmail: theories of blackmail as a crime against the threat recipient, as a crime against third parties, as a societal harm, and as non-crime. It then reviews the American statutes and describes the three general approaches these provisions reflect. Next, it presents the results of an empirical study designed to test those competing theories to see which best accords with prevailing sentiment. The study shows that the Model Penal Code's legal formulation and Mitchell Berman's theoretical account are better than their existing rivals at capturing shared intuitions regarding blackmail. One important shared trait of these two versions of blackmail is that both see blackmail as a form of extortion—a category traditionally limited to conditional threats to engage in criminal acts, such as a threat to injure someone unless paid. Lay understandings of blackmail share the position that its gravamen involves harm to the recipient of the threat, rather than some third party or generalized social interest. Lay intuitions seem to accord with the position that blackmail amounts to extortion because of the blackmailer's bad faith or improper motivations.
crime, criminal behavior, Model Penal Code, Mitchell Berman, extortion
Intuitions of Justice and the Utility of Desert
Robinson, Paul, "Testing Competing Theories: Blackmail" (2013). Book Chapters. 157.