Toward a Resolution of Blackmail's Second Paradox

25 Pages Posted: 30 Aug 2006

Abstract

If A offers to conceal B's embarrassing secret in exchange for B's payment of money, the proposal constitutes the crime of blackmail. But, if instead, B offers to pay money to A to conceal B's embarrassing secret, the proposal is entirely lawful. Substantively, the transactions proposed are equivalent—both involve exchanging money for concealment of a secret. The only difference between the two proposals appears to be formal—the identity of the party initiating the exchange. The lawfulness or unlawfulness of such a proposed exchange is a function of the identity of the party initiating the exchange. But if the proposed transactions are substantively equivalent, why should the identity of the initiating party make such a difference? The lack of any rational basis to explain the criminal law's differing treatment of these two substantively equivalent proposals has become known as the "second paradox" of blackmail. Either decriminalizing blackmail so that both proposals are lawful or criminalizing blackmailee-initiated transactions so that both proposals are unlawful would harmonize the criminal law's treatment of the substantively equivalent proposals and resolve the paradox. While it has generally been assumed that blackmailee-initiated transactions should not be criminalized, the articulation of a persuasive rationale has proven elusive. This Article mounts, for the first time, a conclusive argument against criminalizing blackmailee-initiated transactions.

Keywords: blackmail, paradox, offers, extortion, robbery, threats, bribery

JEL Classification: K14

Suggested Citation

Christopher, Kathryn Hope, Toward a Resolution of Blackmail's Second Paradox. Arizona State Law Journal, Vol. 37, 2005, Available at SSRN: https://ssrn.com/abstract=927428

Kathryn Hope Christopher (Contact Author)

affiliation not provided to SSRN ( email )

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