Blackmail? What You Can And Can’t Do To Coerce A Remedy
Lawyers and parties involved in disputes should give careful consideration to whether a given strategy in seeking a resolution may give rise to criminal liability in Washington. Specifically, beware of criminal liability for blackmail, or as referred to in RCW 9A.56.130, extortion in the second degree.
But first, here is some interesting etymology: Many hundreds of years ago, in Scotland and northern England, clan chieftains would run protection rackets against farmers, extorting them for money in exchange for “protection” against pillaging. Of course, in many instances, the “protectors” were the very criminals against whom they promised protection! By the 1500s, the word “blackmail” had developed in the English language to refer to “tribute paid to men allied with criminals as protection against pillage.” “Black” in this sense referred to being devoid of light, or “evil,” and “mail” evolved from an old Norse word which came to mean “agreement,” and eventually, “rent,” or “tribute”. By the 1800s, the word “blackmail” had developed into its modern sense, i.e., any extortion by means of intimidation, especially by threat of exposure or scandal.
In Washington, extortion in the second degree occurs when a person “commits extortion by means of a wrongful threat as defined in RCW 9A.04.110(28)(d) through (j). Those wrongful acts include:
(d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or
(e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or
(f) To reveal any information sought to be concealed by the person threatened; or
(g) To testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or
(h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or
(i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or
(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships;
The breadth of potential actions above which might subject a person to criminal liability raises concerns about free speech and rights to pursue legitimate litigation. Suppose, for example, that A threatens to sue B and make public that B has defrauded A and others unless B pays $100,000 to A. B might claim that A is guilty of extortion under the statute for threatening to expose non-public facts about B, tending to subject B to hatred, contempt, or ridicule. Should A refrain from threatening litigation out of fear of criminal liability? Must A refrain from demanding payment? If A fears criminal liability for threatening litigation, B’s wrong toward A might have no remedy. These kinds of concerns led to a constitutional challenge to a prior version of the current statute, considered by the Washington Supreme Court in State v. Pauling, 108 Wn. App. 445 (2001). There, an ex boyfriend wished to collect a valid $5,000 small claims court judgment against his ex girlfriend, and threatened to publicize nude photos of her if she did not pay the judgment. After being convicted on counts of second degree extortion, the ex boyfriend defendant appealed on the ground that the extortion statute was unconstitutionally overbroad. Our Supreme Court upheld the statute, but with a limiting interpretation which required that the state prove a “lack of nexus” between the legitimate right pursued and the threat made. In that case, the Supreme Court found that the ex boyfriend’s conduct was extortionate because there was a lack of nexus between his right to collect on the small claims judgment and his threats to publish nude photos. In order to codify Pauling’s limitations on Washington’s extortion statutes, the Washington legislature modified RCW 9A.56.130 to add the word “wrongful.”
The net effect of Pauling and the current version of RCW 9A.56.130 is that people using legitimate means to pursue their rights in good faith need not fear criminal liability for extortion. Still, it is critical to think through how you go about pursuing remedies. If you have a legitimate civil claim to bring against someone, it is OK to pursue a potential pre-litigation settlement. However, if the communications seeking a settlement threaten actions which have nothing to do with the wrong for which you are seeking redress, there is a danger of criminal liability. It is wise to consult with an attorney to get professional advice and guidance to make sure there is a defensible “nexus” between the wrong committed and the remedy demanded.
The lawyers at Beresford Booth have a wealth of experience with drafting demand letters and seeking and obtaining pre-litigation settlements. Whether you are considering litigation or litigation is already pending, we would be happy to assist you.