What is extortion vs blackmail? Is there a difference between the two? Are extortion and blackmail illegal? Prior to the enactment of criminal statutes, extortion existed under the common law as a crime that only public officials could commit.
There is no specific crime of “extortion” in New South Wales (NSW). However, blackmail is a form of extortion as it also involves the act of obtaining something, like money, through force or threats. On the other hand, extortion involves a broader range of criminal conduct. Hence, parties use the terms blackmail and extortion interchangeably.
Extortion usually involved a public official refusing to perform an official act without the payment of money. Extortion refers to the use of coercion to obtain property, money, or services from a victim. Coercion, in this case, usually involves force, violence, threats to destroy property, and improper government action. Some criminal laws include threats to withhold testimony in a legal proceeding as a form of coercion.
One can also face federal charges for blackmail and extortion. If you have violated federal law, you could face harsher penalties. Although there are a lot of similarities between the two crimes, and the sentencing guidelines are the same for both offences, extortion and blackmail describe two different acts.
Hobbs Act Vs Criminal Code Act
The federal extortion statute in the United States is the Hobbs Act. It prohibits the use of threats, intimidation, or coercion to obtain property, money, or other benefits from another person. The Hobbs Act applies to both individuals and organisations. It is used to prosecute cases involving organised crime, public corruption, and labor racketeering.
In Australia, the counterpart to the federal extortion statute is the Criminal Code Act 1995. This Act prohibits the use of threats or coercion to obtain property, services or any other benefit from another person.
Extortion vs Blackmail under Australian Criminal Law
In Australia, extortion blackmail occurs when one uses threats of harm or humiliation to obtain something from someone else. This could be money, sensitive or false information, property, or other things of value.
The Crimes Act 1900 deals with extortion vs blackmail, as Section 249K of the Crimes Act 1900 provides that blackmail is an offence that carries a maximum penalty of 10 years’ imprisonment. Blackmail occurs when an alleged perpetrator:
- Makes an unwarranted demand,
- That demand was made with menaces (see meaning below), and
- Intended to obtain a gain or cause a loss, or to influence the exercise of a public duty.
For a better understanding of blackmail or extortion, one must note the definitions of the following terms:
Unwarranted Demand
Section 249L provides that a demand with menaces is “unwarranted” unless the person believes that he or she has reasonable grounds (beyond reasonable doubt) for making the demand and reasonably believes that the use of the menace is a proper means of reinforcing the demand.
The demand can be expressed (obvious and clear), or it can be subtle and implied by conduct. The demand also does not have to be a demand for money or property. The object of the demand is irrelevant.
Menaces
“Menaces” is defined by Section 249M and includes:
- an express or implied threat of any action detrimental or unpleasant to another person, and
- a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.
A threatened action against an individual does not constitute a menace unless it would cause:
- an individual of normal stability and courage to act unwillingly in response to the threat, or
- the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.
A threat against a government or body corporate does not constitute a menace unless it would:
- ordinarily cause an unwilling response, or
- cause an unwilling response because of a particular vulnerability of which the person making the threat is aware.
In summary, menaces are threats where the mind of an ordinary person of normal stability and courage might be influenced so as to unwillingly give in to the demand.
Gain, Obtaining a Gain, and Causing a Loss
Section 249N defines “gain” as a gain in money or other property, temporarily or permanently, and “obtaining” as obtaining a gain for oneself or another; “loss” as a loss in money or other property, temporarily or permanently; and “causing” as causing a loss to another.
Public Duty
Section 249O defines “public duty” as a power, authority, duty or function conferred on a person as the holder of a public office or that a person holds themselves out as having as the holder of a public office.
Actions Amounting to Blackmail
Essentially, blackmail occurs when one person threatens another with an action that would cause them harm or embarrassment if they don’t comply with the demand. In DPP v Kuo (1999) 49 NSWLR 226, the Court said that the threat does not have to be against the person, but can also be a threat to property only.
However, a person can be convicted of blackmail even if the benefit was never obtained or the threat was never carried out. The fact that no loss or gain occurred will not cause a charge of blackmail to be unsuccessful.
For example, if you threatened another person and they ignored your threats, you could still be charged with blackmail. If there was an intention to obtain a gain or cause a loss, it would already constitute an offence of blackmail.
Examples of acts of blackmail to an alleged victim include:
- a person demanding access to children under the threat of violence,
- a person threatening to poison an ex-partner’s pet if the latter does not agree to resume the relationship,
- a person threatening a victim to search the victim’s house and remove the victim’s children unless the victim would give them a certain sum of money, and
- a person threatening to set fire to the victim’s house if the victim would not come with them.
Sextortion
Another form of blackmail is “sextortion” (a combination of a sexual offence and extortion), or commonly known as sexual blackmail. This occurs when a person threatens to distribute, publicise or post one or more intimate images of the person unless demands are met.
Sextortion is governed under Sections 91P, 91Q, and 91R of the Crimes Act 1900 and carries penalties ranging from three to six years’ imprisonment.
Can Extortion vs. Blackmail Occur Without Words?
Yes. Blackmail can occur through actions, such as body language. Courts have ruled that a threat can be expressed or implied. It can be made without the use of words, but implied through body language or gestures.
In addition, in Austin v The Queen (1989) 166 CLR 669, the Court ruled that the demand need not be communicated to the “target”, but there must be an intention to communicate it to the “target”, and in circumstances suitable to achieve that end. The behaviour in making the demand is the essence of the offence.
Penalties of Blackmail
Blackmail is a crime which carries a maximum penalty of 10 years’ imprisonment. However, the maximum penalty increases to 14 years’ imprisonment where the person threatens to commit a serious indictable offence, such as robbery or assault resulting in physical harm and injuries.
Seeking Legal Advice About Extortion vs Blackmail
Extortion and blackmail are serious crimes. If you are facing a charge of blackmail, lawyers can help by preparing legal defences to the offence.
JB Solicitors has a team of experienced lawyers that can address your situation. Our team of lawyers can provide you guidance on your legal right and legal representation on your case.
Contact Us
Do you have any more queries regarding extortion vs. blackmail? Contact us today.
