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Blackmail is a severe criminal offence in Australia. You will have likely committed blackmail if you have threatened to cause harm to someone or to a particular entity if they do not meet your demands. Blackmail can also occur if you threaten to expose damaging details or disclose sensitive information about an individual or entity if they do not meet your demands. This article will define blackmail in the legal context and the elements of blackmail.
Legal Definition of Blackmail
Blackmail is the act of threatening to harm someone or someone’s reputation and where one person makes a demand on another person for specified property. The threat is normally accompanied by a threat or force and typically involves a monetary figure and benefits the blackmailer.
You will find that the Crimes Act of NSW explains that a blackmail offence can occur in two distinct instances. The Crimes Act provides that if you make any unwarranted demand with menaces with the intention of obtaining a gain or causing a loss, this will constitute blackmail. Similarly, if you make any unwarranted demand with menaces with the intention of influencing the exercise of a public duty, this will also constitute blackmail. The maximum penalty for a blackmail offence is ten years imprisonment.
This means that if you threaten someone by suggesting you will do something damaging to their reputation or otherwise (like physical harm) unless they yield to your demands, this will typically constitute blackmail. You may be demanding money, property, or something less physical. Whatever the case, a demand followed by a threat usually equates to blackmail.
As such, if you threatened another person intending to obtain a gain or cause a loss, you have likely blackmailed this person. Similarly, if you have threatened to reveal a secret to obtain business favours, you have likely committed blackmail.
Elements of Blackmail
Blackmail has three key elements that make up the offence:
- making unwarranted demands;
- use of threats; and
- intention to obtain a gain or cause a loss.
1. Is There a Demand?
Firstly, we need to determine if there were any unwarranted demands. Blackmail exists if the blackmailer demands money, property or services that are unjustified or owed to them. The blackmailer’s demand can be overt or subtly implied by their conduct.
To prove that there was a demand, the onus of proof is ‘beyond reasonable doubt’. The accused blackmailer has to make the demand. Otherwise, the Courts are likely to find the accused blackmailer not guilty.
2. Is There a Threat of Force?
Secondly, the blackmailer has to make a threat of force. It must shown the blackmailer threatened to cause you harm or a loss if you did not meet their demands.
If, however, the Crown does find that there was a demand, they will continue to try and prove the second element of the offence, which is proving that a threat or force accompanied the demand. The Crown will ask the following questions:
- What was the threat or force?
- Was it being made against the victim?
- What words or conduct occurred?
- Did those words/conduct amount to a threat?
These questions are asked from an objective point of view. That means that a court would need to consider whether or not a person of ‘reasonable firmness and courage’ would have considered the conduct to be threatening enough to respond in a way that is contrary to their wishes. In other words, what would a regular person do in that situation? How would they react?
3. Did They Intend to Steal, Obtain a Gain or Cause a Loss?
Once the second element has been proven, the Crown must prove the third, essentially the mens rea or ‘guilty mind’ aspect of the offence. Was there an intention to obtain a gain or cause a loss? It would need to be determined if the blackmailer intended to obtain a benefit for themselves or to cause the victim harm by the threats. Similarly, you must consider whether the person intends to deprive you of your property or money permanently. It needs to be shown that the accused knew that the property did not belong to them and that they acted with a guilty state of mind.
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Key Takeaways
Blackmail is a serious criminal offence and is punishable by fines and imprisonment. To establish blackmail an act of threatening behaviour must have occurred. Moreover, it needs to be shown the perpetrator intended to cause harm or damage to the individual or entity. Blackmail is considered an offence no matter how obvious, overt, subtle or implied the conduct is. The elements of blackmail include the need to prove unwarranted demands, the use of threats and an intention to obtain a gain or cause a loss.
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