Friday, June 15, 2012
Peter K. Westen (University of Michigan Law School) has posted Why the Paradox of Blackmail Is So Hard to Resolve (Ohio State Journal of Criminal Law, Vol. 9, No. p. 585, 2012) on SSRN. Here is the abstract:
The paradox of blackmail is the apparent contradiction between what popular intuition and reasoned reflection, respectively, regard as criminally culpable. Popular intuition indicates that it ought to be criminal — indeed, a paradigmatic instance of blackmail — for an actor, A, to extract value from a celebrity, Ms. B, by threatening unless paid to reveal an embarrassing secret about B (e.g., that B has an illegitimate child or is guilty of adultery), while offering if paid to remain silent. Yet reason suggests that there is nothing wrong with A’s extracting value from B regarding a lawfully-marketable good, i.e., information, by A’s conditionally threatening and offering to do things with the information that are lawful when done unconditionally (i.e., disclosing it or withholding it, whichever A prefers). I believe that many instances of criminalized blackmail are no more paradoxical than run-of-the-mill extortion, because what actors conditionally threaten and offer to do in such cases is actually unlawful — though not necessarily criminal — when done unconditionally. Yet truly paradoxical cases remain, including the aforementioned one involving Ms. B. I argue that the continued criminalization of such cases is based upon the same intuition that underlies that much-criticized doctrine of double effect: the intuition that an actor who reasonably believes that the harm he is inflicting is a lesser evil under the circumstances is, nevertheless, culpable, if his motivating purpose is to inflict the harm. The criminalization (and, hence, the paradox) will persist until lawmakers are persuaded it is a misapplication of otherwise valid roles for purpose and motive in criminal law and morals.