Blackmail, Extortion and Sextortion

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While blackmail and extortion are related offenses, extortion is treated differently under federal law.

Extortion is considered a crime against property. Blackmail is considered a crime against the person.  

Elements of Extortion:

The United States criminalizes extortion under 18 U.S. Code Chapter 41.  

The three (3) elements for "extortion" include:

1. A person using a threat if force, violence, fear, or under false pretenses,
2. Against any violation of any law of the United States,
3. To obtain property or something of value from another.

One important difference between blackmail and extortion is that extortion can be any broad threat against a victim in order to take something from them.  Extortion is very similar to robbery, which is the use of force or violence in order to take something of value.  Extortion varies from robbery in that it is the showing of an intent to use some sort of means to steal from the victim. Blackmail uses information of some sort as the threat against the victim.

To tell the difference, it comes down to what the actor does or doesn’t do to determine what type of crime is committed. For example, if the neighborhood bully tells a victim to hand over their bicycle, or something really bad might happen to them, that is a form of extortion.  If the neighborhood bully punches the victim and steals their bicycle, that is robbery.  If the neighborhood bully tells a victim to hand over the bike, or they will tell the entire neighborhood something really embarrassing about the victim, that is a form of blackmail.

• "Blackmail" as a federal crime could result in fines ranging up to $100,000, up to one year in prison, or both.
• "Extortion" as a federal crime could result in up to twenty years in prison. A larger prison sentence is much more likely if there is a threat of physical violence.
• "Sextortion" is not recognized by New York State. It is considered a form of blackmail and extortion.

The state of New York treats both blackmail and extortion the same and both can be charged as  either a B level felony or C level felony.  The penalty can range from one year in prison up to twenty-five years in prison, depending on the amount of money extorted and whether the threats are violent or non-violent.

New York City recently enacted a specific sextortion law in 2017, making it a class A misdemeanor if the offense occurs within the five boroughs of New York City.  This crime carries up to one year in prison and up to a $1,000 fine.

#1. Sexual Exploitation of Children - 18 U.S.C. Section 2251

The criminalization of the sexual exploitation of children is commonly used by the Federal government in online sextortion crimes.

Elements of Child Pornography

1. Possession or creation
2. Of the visual depiction
3. Of a minor (under 18 years old)
4. Engaging in sexually explicit conduct.

Any sextortion crime that involves pictures or videos of  someone under the age of 18 is a violation of this federal law.  It can result in up to 15 years in prison.

#2. Stalking - 18 U.S.C. Section 2261A

Stalking of a victim is often a related crime to blackmail and extortion, especially when used through the internet.

Elements of Stalking:

1. Travelling interstate
2. With the intent to kill, injure, harass, or intimidate another person
3. Placing that person in reasonable fear of death,  serious bodily injury, or emotional distress
4. To the victim, the victim’s immediate family member, the victim’s spouse, or victim’s pet. 

When a person seeks information through the internet with the intention to use that information against a victim, such as to extort them or blackmail them, that can violate stalking laws.  Obtaining sexual photographs and extorting a victim may also cross over with sextortion cases.  The penalty for stalking is up to five years in prison and a fine of up to $250,000.

#3. The Computer Fraud and Abuse Act - 18 U.S.C. Section 1030

Computer hacking is often involved along with blackmail, extortion, and sextortion.

Elements of Computer Hacking:

1. Knowingly accessed;
2. A computer;
3. Without authorization or in excess of authorization;
4. And that access leads to obtaining information protected by the United States Government, information contained in a financial record, information from a protected computer, 
5. or; with the intent to commit fraud,  extort an individual, cause damage,  or steal passwords. 

When someone hacks into another person’s electronic device to steal information or photographs that could be held against them for ransom, the federal hacking offense may be charged.  The penalty for computer hacking is up to twenty years in prison and fines of up to $250,000.

One of the most well known cases which included blackmail, extortion, and sextortion was the Wisconsin case of Anthony Stancl. In 2010, the state of Wisconsin brought multiple charges against Stancl for posing on Facebook as a female in order to trick male high school students to send him nude photos.  When he got the nude photos, Stancl would use sextortion tactics to threaten to release the photos unless they submitted to sexual activity with him. Stancle was charged with sexual assault of a child, possession of child pornography, and child enticement.  Notably, he was not charged with any extortion or sextortion offenses, as the nature of the acts were not criminalized at the time in 2010. 

Sentencing: Ultimately, Stancl faced over 300 years in prison for the various charges he faced.  He received 15 years in prison for his crimes after pleading guilty to sexual assault of a minor.

• Lack of Intent

Prosecutors must be able to prove the level of intent required to meet the elements of blackmail, extortion, and sextortion crimes.  All of these crimes require a knowing intent to threaten or instill the fear of a threat in a victim.  In order to do so, the prosecutor would have to use supporting evidence to prove that a person truly intended their actions to be a threat against the victim.  For example, in the case of sextortion, if a boyfriend jokingly told a girlfriend that he was going to send her naked pictures to his friends unless she baked him a birthday cake, the intent of a threat may not be proven.  There needs to be supporting evidence that the boyfriend really meant that he would act in such a way to blackmail the victim.

Similarly, if the acts are done under duress, the element of intent cannot be proven by prosecutors.  Duress is the involuntary act based on the threat or fear of harm if one does not do as they are told.  The common example used to illustrate duress is the “gun to the head.”  If someone has a gun held to them and told to commit a crime, intent is no longer voluntary so it cannot meet the elements of an intentional act. 

• Lack of Ownership

Prosecutors must also prove that the victim of extortion, blackmail, or sextortion is the rightful owner of the property being extorted.  This is especially true when the issue is the threat to release damaging information or sexual photographs in a sextortion case.  For example, if an alleged victim of sextortion sells nude photographs and consents to their release, it would not be sextortion if the person or company that purchased them agreed to not release them for a sum of money.  The same would be a defense if the photographs were already released into the public and readily available., it may be a defense that the threat of the release of the photographs is not a crime, as they already exist in the public domain. 

• Factual Defenses

Facts supporting the acts of blackmail, extortion, and sextortion must be proven.  Typically, it is easy for a prosecutor to prove a threat if it is in writing and the prosecutor has a copy of the document.  However, when a threat is made verbally or in a manner otherwise not documented, it may come down to a dispute of facts as to whether the threat ever occured.  

For example, in an alleged sextortion charge, if a victim claims someone told them they would release nude photographs of them if they didn’t perform a sexual act, but the charged person claims they never even spoke to that person before, it would be a defense based on the dispute of facts as to whether a threat was ever made. As with almost all crimes in the United States, it would be up to the prosecutor to prove beyond a reasonable doubt that such a threat was made.

While usually prosecuted as criminal offenses, blackmail, exotrion, and sextortion victims can also bring civil lawsuits to either compensate them for damage of the crime or to file injunctions to stop the release of damaging or embarrassing information or photos.  Lawyers in New York have successfully stopped the release of damaging information through civil injunctions.

These include cases involving traditional extortion against businesses and individuals, as well as modern crimes that involve computer hacking and extortion over the internet.  As sextortion becomes more and more prevalent, especially with hackers obtaining private photos and videos from individuals computers and cell phones, the use of injunctions are becoming much more important to ensure those embarrassing things are never released.

If the damaging or embarrassing information is released, lawyers can also try to recover losses by their clients through civil lawsuits against the criminal actors and any other entity that may have helped them.  For example, if a school knows that one of it’s students is using sextortion tactics against other students and does not take adequate measures to stop it, the school system could be sued for the damage it caused by not taking the action necessary to stop the victimization of its students.

It is natural for victims of blackmail and extortion to be fearful of those threatening them.  Sextortion victims not only are fearful but also face much embarrassment over the sexual nature of the crime being committed against them .If you are a victim of any of these crimes or know somebody going through this situation, it is important that you do everything you can to protect your rights.

Blackmail, extortion, and sextortion do not always stop all at once.  Often times, victims may face these crimes over and over again, as those that commit these crimes continue to hold  their threats over their victim’s heads.  Even if they stop with you, it is not uncommon for criminals to seek out new victims and to commit the crime over and over again.  A legal professional experienced in these crimes and offenses can help stop the cycle of victimization for both you and potential future victims.

Time may be an important factor for victims of blackmail, extortion,and sextortion.  Failing to act quickly may result in violence against the victim or the release of the damaging information.  An attorney experienced in these types of cases may be able to put a plan in place to protect you from these negative consequences.