"Is blackmail a crime?" is a common question that people ask, as many people probably make demands without realising it already amounts to blackmail. But is blackmail a crime? Blackmail (also known as "extortion"), often occurs after a broken relationship or a divorce. A former spouse may be threatening you when disagreements arise out of parental arrangements, support, and other family matters.
If a person threatens you by suggesting that they would do something to damage your reputation or inflict physical harm unless you submit to their demands, it would constitute blackmail.
Your former spouse could be demanding money, property, or something that isn't tangible. When that demand is accompanied by threats, it equates to blackmail. For example, your former spouse threatens to post embarrassing photos of you on social media unless you pay a certain amount of money.
This article tackles queries on "is blackmail a crime?" and the relevant acts and penalties, among other legal matters.
Is Blackmail a Crime and What Does the Law Say?
Blackmail is illegal and punishable by law. In Australia, a person commits blackmail when they use threats of physical harm or humiliation to obtain gain from someone else. This could be money, sensitive or private information, personal property, or other things of value.
Blackmail is an offence under Section 249K of the Crimes Act 1900 which carries a maximum penalty of 10 years' imprisonment.
The offence of blackmail is established if a person beyond reasonable doubt:
- Made an unwarranted demand,
- Made that demand with menaces, and
- Intended to obtain a gain or cause a loss, or to influence the exercise of a public duty.
For a better understanding of the offence, it is important to note the definitions of the following terms:
Unwarranted Demand
Section 249L of the Crimes Act 1900 provides that a demand with menaces is "unwarranted" unless the person believes that he or she has reasonable grounds 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 explicit (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
Section 249M defines "menaces", it 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 threat 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 corporate body 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 a nutshell, menaces are threats where a party influences the mind of an ordinary person of normal stability and courage so as to unwillingly give in to the demand. In addition, in any case, it is immaterial whether the menaces relate to action to be taken by the person making 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.
Is Blackmail a Crime and What Actions Constitute 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, authorities can convict a person of blackmail even if they never obtained the benefit, or never carried out the threat. 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 get a charge of 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 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 removing 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.
Another form of blackmail is "sextortion", or commonly known as sexual blackmail. This is a type of blackmail where a person threatens to distribute, publicise or post one or more intimate images of the person unless they meet their demands. For instance, a person demanding money or sexual favuors from another in exchange for not publishing naked photos of the latter.
Sections 91P, 91Q, and 91R of the Crimes Act 1900 governs this. It carries penalties ranging from three to six years' imprisonment.
Is Blackmail a Crime Even When It Occurs Without Spoken or Written 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. It does not need to be an explicit threat; a person's conduct constitutes an implicit threat made through inferences.
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 criminal offence.
Is Blackmail a Crime and What Are Its Penalties?
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 bodily harm and injuries.
Seeking Legal Advice About Blackmail
Is blackmail a crime? Yes, it is. If you are facing threats constituting blackmail, seek protection and legal advice. If you are facing criminal charges of blackmail, lawyers can help by preparing legal defences to the offence (which includes self-defence or duress).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.