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 equivalentboth involve exchanging money for concealment of a secret. The only difference between the two proposals appears to be formalthe 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: Suggested Citation