Some types of theft crimes make the headlines and become the subject of best selling novels, while others don't get much publicity. Extortion tends to be one of the headline grabbers, perhaps because the victims are often celebrities and politicians. But there is nothing sexy about extortion, a crime that usually involves threats to cause harm or expose secrets if the extortionist doesn't get his way. It is prosecuted criminally in California as a felony, but it can also be a civil wrong.
Extortion: The Crime of Bullying for Profit
Extortion in California is a crime described in Section 518 of the California Penal Code. This is not a breaking and entering theft, nor does it usually involve a weapon. You could argue that the crime of extortion isn't really a theft crime at all, since the victim ends up giving the extortionist what was demanded. But the "gift" is the direct result of threats that made the victim fearful, not a voluntary act.
The statute describes extortion as "the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." The term consideration is broad enough to include anything of value, including sexual conduct.
Private People Vs. Public Officers
Extortion cases are not all alike, as the definition in the Penal Code makes clear. Three distinct types of extortion are crimes under the statute:
- Threats against a private party to get them to hand over property or other consideration.
- Threats against a public officer to get them to do some official act.
- Threats made by a public officer to take some official act against someone's interest unless certain consideration is paid.
An example of private extortion is threatening to publicize someone's extramarital affair if $1 million isn't handed over. Obviously, the target is likely to be someone with money and in the public eye. An example of public officer extortion might be threatening to publicize an extramarital affair if a building permit isn't issued to the extortionist/developer. Finally, extortion by a public officer might be the threat to deny a building permit to a developer if $1 million isn't paid to her.
Elements of Crime of Extortion in California
In California, in order for prosecutors to prove the crime of extortion, they must prove four elements of the crime. If a prosecutor cannot prove every one of these elements beyond a reasonable doubt, the accused cannot be convicted. The four required elements of the crime of extortion are:
- Existence of a threat.
- The threat was made with the intention of forcing the victim to give him money, property or to do an official act.
- The threat causes the victim to agree to the demand.
- The victim hands over the money or property demanded or does the official act demanded.
Read More: Extortion in California: Laws, Different Types & Penalties
Threats That Constitute Extortion
Consider the big kid in elementary school who would make other kids hand over their lunches if they didn't want to get punched. That's the basic pattern of the extortionist. Although a punch in the mouth is not the threat of choice in this type of crime, threat of bodily harm to the victim or the victim's family is regularly used by adult extortionists.
Any threats of harm to a person or his property constitutes a sufficient threat for the crime of extortion. This can be a physical threat to injure the victim, their family or a third party, or to accuse the victim of a crime. It can also be a threat to harm property, to expose a secret or to publish something private, such as a nude photo, that can connect the victims or someone close to them with a crime or scandal.
It isn't necessary for someone to carry through with the threat of harm in order to be charged with extortion; it's unnecessary, after all, if the coercion was successful. And a covert or implied threat can be sufficient, even if the extortionist doesn't use threatening language. For example, going into the office of the public officer in charge of granting building permits and throwing down on the desktop an application for a permit and a compromising photo of the public officer may well be enough to prove extortion.
What if the Acts Threatened Are Legal?
Extortion is more about the coercion than about the threatened act itself. A threat can constitute an element of extortion even if the act threatened is perfectly legal, or the property, money or other consideration demanded is something the extortionist has a right to.
- A journalist researches and writes a story about a politician having a cocaine problem. She tells the politician that she will publish it unless he pays her a large amount of money. While the journalist has a legal right to publish the story, she does not have a right to use the threat of publication to demand payment.
- A person lends a friend money but the friend refuses to pay it back. The lender goes to the friend's house with a gun and threatens to shoot him if he doesn't repay the money. While she has a legal right to reclaim the loan money, she doesn't have the right to threaten the borrower with a gun.
Note that a threat to do something you have a right to do is not extortion. The crime of extortion must involve some threat or demand you do not have a legal right to make, such as:
- A relative asks to borrow your car and you say you will lend it to them only if they pay you $50. Since you have the legal right to decline to lend your car, you are making a bargain, not a threat.
- Likewise, a teacher threatening to flunk a student if their term paper is late is not committing extortion. A teacher has the right to issue a failing grade if a student fails to turn in a term paper.
What Are Secrets in Extortion Law?
Exposing a secret is another action that can qualify as a threat for the purposes of the California extortion law. Under the Penal Code, to be a threat for extortion purposes, a secret must be 1) a fact that an interested party or the general public doesn't know, but might be interested in knowing and 2) a fact the exposure of which is likely to harm the victim's reputation or interests to such an extent that they would probably hand over consideration to keep it quiet.
It is no defense to a charge of extortion to argue that the secret fact threatened to be exposed is true. For example, imagine a married governor and an employee who threatens to publish a false story that the two of them are having an affair unless he appoints her to some highly paid position. This would be extortion. But it is equally extortion if the story is completely true.
What Is Consent for Extortion Purposes?
The concept of consent means different things in different crimes. In terms of rape and sexual assault laws, consent means a fully voluntary decision freely and willingly given to participate in sexual conduct by someone able to give consent. But it means something entirely different in California extortion law.
Under Penal Code Section 518, consent means coerced agreement reluctantly given as the result of the threatened wrong. The threat and the resulting fear must be the main reason the victim agreed to hand over money or property, or to perform an official act.
Must the Victim Have Performed the Act?
To constitute extortion, an element of the offense is that the victims actually perform the acts that they were coerced to do. For example, they must have paid the money, surrendered their car or, in the case of a public officer, performed the official act.
If the victim called the police or otherwise avoided actually doing the coerced act, it is not extortion. But the person coercing the victim doesn't get off entirely free. In this case, the act will likely be charged as attempted extortion.
What Is Extortion by Threatening Letter?
There is one exception to the requirement that an extortion victim actually pay the coerced consideration. There is a second extortion statute found in California Penal Code Section 523 called extortion by threatening letter. This type of extortion requires that the victim received a letter from someone making extortion-type threats if their demands are not met.
This looks quite a lot like Penal Code Section 518 extortion, other than the fact of the writing. However, for extortion by threatening letter, the victim doesn't have to hand over the money or even consent to do it. The written threat is sufficient.
What Are the Penalties for Criminal Extortion?
Under California law, the crime of extortion is a felony that can be punished by up to four years in jail and a fine of up to $10,000. The court can consider aggravating factors as well in determining a sentence. One aggravating factor is if the victim is a dependent person or a senior.
If the victim refuses to be coerced, the person trying to extort them can be charged with attempted extortion. Attempted extortion is a "wobbler" offense in California. This means that it can be charged in either as a felony or as a misdemeanor. Misdemeanor penalties cap out at one year in county jail and a fine of $1,000. Maximum felony penalties for attempted extortion are three years in state jail and a fine of $10,000.
What Is Civil Extortion?
In California, extortion is a crime, but it can also be the basis for a civil suit for damages. The elements of civil extortion are similar to criminal extortion, involving a threat coercing the payment of money, property or services. The plaintiff – the person bringing suit – must prove all of these facts in order to get a judgment against the defendant:
- The defendant was aware that the threat was wrongful.
- The threat was made to coerce the plaintiff to hand over money, property or services.
- The plaintiff did hand over money, property or services.
A person who was the victim of an extortion doesn't have to wait until criminal charges are brought against the extortionist to file a civil suit. In fact, even if criminal charges are never brought, or if the person is not convicted, the victim can still sue for civil damages. The key is that the victim must have actually complied with the act that was coerced. A person who doesn't pay up cannot bring a civil suit.
What Damages Are Available for Civil Extortion?
A person who brings a suit for civil extortion can ask for the return of the money or property paid to the blackmailer or for the value of the money or services. California law also permits an award of punitive damages in appropriate cases. Unlike compensatory damages, punitive damages are not intended to compensate for actual losses, but rather to punish the person for deliberate wrongdoing.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.