What’s Wrong with Blackmail?

Posted in: Criminal Law

Everyone knows that blackmail is illegal. If I threaten to tell your secrets or release private pictures or videos of you unless you pay me or comply with my demands, I am committing a crime. Prosecution is unusual, however, for the same reason that blackmail “works” in the first place: people prefer to pay or do whatever the blackmailer demands rather than see the threat against them carried out, so they do not tend to go to the authorities.

Blackmail is one example of coercion. I have the power to do something, and I threaten to do that thing unless you carry out my orders. Even though I might have the authority to do what I threaten, the law prohibits me from making demands as a condition for my refraining from exercising that authority. This prohibition might seem irrational: shouldn’t the greater power to release compromising photos include the lesser power to give someone a choice between your releasing those photos and their performing some action? In this column, I will consider what we might call the paradox of coercion, a phenomenon of which blackmail is one instance.

Why It Seems Paradoxical

Imagine that while looking for the coat room at my friend’s house, I open the wrong door and stumble upon my friend’s husband in bed with another woman. Few would fault me for going directly to my friend and reporting what I saw. At the same time, many would understand a contrary decision not to tell my friend what I had learned. I could choose either course of action without violating the law or attracting much criticism. Meanwhile, his infidelity, I could surely ask my friend’s husband if he would mind doing me a favor and mowing my lawn and shoveling the snow on my driveway for a month.

Take the various lawful possibilities, however, and mix them together: say I tell my friend’s husband that if he mows my lawn and shovels my driveway for the next month, I will refrain from revealing his dalliance to his wife; if he refuses to cooperate, then, well, I might feel more talkative, right? I have now engaged in blackmail. We take various legal actions and, as if by magic, create an illegality by making one (the lawn work and snow shoveling) a condition for another (keeping quiet about the affair). If I can do any one of these things by itself, then why shouldn’t I be able to condition my choice of what to do on my target’s response to my request?

It is surprisingly difficult to answer this question, though we can identify other examples of a similar phenomenon. The law allows one adult, X, to sleep with any other consenting adult. The law also allows X to ask anyone she likes for money. Most states, however, prohibit X from conditioning sleeping with people on payment, defined as prostitution or solicitation. The same holds true for organ donation. One can volunteer one’s kidney for transplantation, and one can solicit funds from people, but one may not lawfully sell one’s kidney.

Libertarians might say that prohibitions against blackmail, prostitution, and the commodification of sex or kidneys are wrong. People, the people supposedly receiving protection from laws against coercion, have the right to make choices that hurt no one else, even if they would have made different choices in the presence of more personal wealth or other options. It is paternalistic and contrary to their liberty to deny them those choices for their own good. This is especially true if the choices in question are permissible when separated from the “either or” exchange.


The usual answer to the “what’s wrong with that?” question is coercion. Coercion is similar to force and threats of force but more subtle and difficult to detect. If you point a gun at John and tell him you will kill him unless he gives you $5,000, you have threatened force against John. If, by contrast, you tell John that you will allow him to retain his at-will job if and only if he pays you $5,000, then you have engaged in coercion. Terminating at-will employment is generally permissible without a reason, as is requesting money, but the demand for money in exchange for allowing him to keep his job seems to fall into the category of extortion-like behavior.

Coercion comes up in the world of sexual interactions as well. One might view offering a person money in exchange for sex as coercive, although many sex workers/prostitutes say that they experience their choices as autonomous to the same extent as those of any other worker. To classify payment for sex as coercive, one must therefore have an account of sexual services that distinguishes them from other types of services, like cutting hair and painting customers’ toenails, that people perform in exchange for money.

Further into the world of sexual coercion exists a very different sort of exchange from the one in which one person (usually a man) pays another (usually a woman) for sex. It is the exchange of sex and affection for degradation. (To be clear, I am not necessarily speaking of people within the BDSM community.) Imagine that Jamie and Janey are a couple and that Janey finds it arousing to watch Jamie humiliate himself. The ways in which an individual can humiliate himself beggar the imagination, so let us take a tame example. Janey orders Jamie to walk around her home in a diaper, drink wine from a baby bottle, and sit in a high chair while waiting patiently for Janey to feed him after she has finished her own meal. Jamie must ask Janey’s permission to use the restroom (the diaper is just for show), and he must stay silent for hours at a time while the two are together as Janey decides whether and when he may speak. Finally, Jamie must pose for photographs that would subject him to ridicule at work and elsewhere if released.

Why does Jamie go along with Janey’s humiliating orders? Assume that it is because he is in love with Janey and when he follows her directives, she becomes warm and loving towards him. When he refuses, by contrast, Janey becomes cold and uninterested in interacting with Jamie. From Jamie’s perspective, Janey’s affection is so thrilling that he is willing to humiliate himself to “earn” it. Janey perhaps feels little for Jamie but is willing to put on an act (which Jamie may or may not detect as fraudulent) in exchange for the various tokens of degradation. If we asked Jamie to describe his feelings about self-humiliation, he would tell us that he strongly dislikes the rituals in which Janey orders him to engage. He does it exclusively for Janey’s affection and sexual attention and would otherwise never do any of it. Indeed, he cries sometimes when he believes that Janey is asleep, contemplating his own disgrace and her apparent indifference to his feelings.

Should such coercion be legal? Some say yes, because each of the two people is pursuing his or her desires and maximizing the wellbeing of both. Janey has the right to give or withhold her affection from, and her sexual attention to, anyone she pleases. Only Jamie knows how much he wants to experience Janey’s affection and to have sex with her, and he apparently wants it all enough to humiliate himself to get it. Similarly, Janey knows how much she enjoys Jamie’s degradation and whether she is willing to expend the energy to fake affection for him in exchange for it. Each of them benefits in some way from the exchange.

Others would liken the benefit that Jamie gets from Janey’s “affection” to the high of taking cocaine or methamphetamine. What keeps Jamie coming back for more is not the fact that he “enjoys” receiving fake affection from Janey but rather an unhealthy addiction to that fake affection. Permitting the exchange in question to take place, in this view, allows a harmful addiction to flourish, one that will drive Jamie over time to do whatever it takes to keep the drug coming. We believe that drug addictions diminish rather than reflect the exercise of freedom and autonomy. Just as we prohibit the use of various dangerous drugs, it follows likewise that we should be able to prohibit the exchange between Jamie and Janey.

But if we view fake affection as a dangerous drug, then shouldn’t we prohibit it across the board, regardless of whether the bearer asks for something in return, just as we do with cocaine and methamphetamine? And indeed, shouldn’t we also prohibit people from showing others real affection? After all, it is presumably not the fakeness of the affection that addicts the recipient but the target’s perception of real affection. One who grants real affection, moreover, could also come to withhold it temporarily or permanently. Yet no one would suggest that we prohibit people from showing affection to one another, however fleeting it might be.

So once again, we are left with the question: what is it about coercive exchanges that make them objectionable in a way that the simple transfers of affection or self-humiliation or information or cash are not?

The answer I favor—though I too would probably avoid blanket legal prohibitions—is to resist the emotional manipulation and denial of autonomy inherent in coercion. If someone does not himself find self-humiliation appealing, no one should manipulate him into engaging in it just because he desperately wants affection. Such manipulation makes him into a puppet and the manipulator into a puppeteer. If someone is desperate enough, he can be manipulated into doing almost anything. This is likely true, for example, of someone so desperate for money that she is prepared to undergo surgery and surrender a kidney. Perhaps there should be a presumption against coercion of any sort with the burden on the coercer to show that he is not harming the target.

Illegal and Wrong

Manipulation of the type described is sometimes illegal. Quid pro quo sexual harassment is an example. If Boss tells Employee that Employee can receive a promotion at work in exchange for sexual favors, Boss has violated federal law. This is true even if Boss has otherwise unlimited discretion to decide who receives a promotion and even if Employee is unqualified for the promotion. It is the manipulative extraction of sexual favors that violates the law, perhaps in part because of the suspicion that Boss may eventually come to expect sexual favors from even the most qualified female employees as a condition of promotion.

Most of us can understand why quid pro quo harassment is impermissible. We can relate to the feeling of desperation for a promotion that might motivate a person to sleep with someone they find unattractive. The authority that a boss has over an employee is concrete and clear, so the manipulation is plain. The power that a blackmailer has over a compromised individual is obvious as well, so that few would quarrel with that illegality. When two seemingly equal people, however, exchange affection and sex for self-humiliation, it will likely seem weird but harmless to many onlookers. Though such conduct is difficult to police and prohibit under the law, it might—for the sake of potential and actual victims—be useful for people to understand that manipulating another person with anything that the other person desperately wants, whether drugs, money, sex, or affection—threatens that person’s autonomy.

Janey’s manipulation of Jamie may not fall into an existing legal category like blackmail or quid pro quo harassment. But it is cruel. If Janey and Jamie are a couple and Janey wants to leave, then she of course may do so. And if Janey wants to ask Jamie whether he would be willing to self-humiliate, she can do that as well. But when she conditions her sticking around or providing affection on self-humiliation rituals that Jamie hates, she leverages Jamie’s intense needs against him. This seems to go beyond simple selfishness into the realm of cruelty.

We have all heard the (sexist) joke in which a man asks a woman whether she would sleep with him for a million dollars. She replies that she would. He then asks whether she would sleep with him for $100. She says no, of course not; what kind of woman does he take her for? He replies that they’ve already established that and are now just haggling over price. In the joke, the woman does not regard herself as a “whore” (though the man implies she is), but the prospect of a million dollars is so appealing to her that she says yes. Though no one has literally forced her to agree to have sex for money, the offer uses coercion to yield the same result. Manipulation leaves just enough apparent agency in the target to make it seem like she really did make a choice. For that reason, coercion and manipulation may sometimes be worse in their impact than the use of force. No one blames the victim of an armed robbery.

Unfortunately, I do not have a magic formula for determining which coercion ought to be illegal and which ought to be permissible. My instinct is that it would be impractical to prohibit all coercion, in part because distinguishing between benign influence (“if you do well on your exam, I’ll get you a new iPhone”) and malign manipulation is not always easy. We know that some types of coercion are prohibited by law (blackmail, quid pro quo sexual harassment), so maybe the best approach would be to assess instances of coercion on a case by case basis. For each, we might ask “how much is this like the coercion we already prohibit in the category of blackmail or quid pro quo sexual harassment?” We could then perhaps evolve over time toward a legal framework that is less and less supportive of coercion.