“Is blackmail a free transaction?” A common-sense-defying question advances common sense

Let’s think about the nature of coercion using blackmail as an example

To coerce someone to do something sometimes constitutes a crime. For example, if you forcibly make someone do something which the person has no obligation to do, the crime of compulsion may be constituted; if you forcibly make someone deliver money or goods, the crimes of extortion or robbery may be constituted; and if you forcibly make someone have sexual intercourse, the crime of forcible sexual intercourse may be constituted.

We can say that these forms of coercion are set forth as crimes for which criminal penalties are imposed because they violate the other person’s freedom, which is an important right.

On the other hand, it is a fact that many of our decision-making activities are performed under psychological pressure from the outside.

For example, in our daily life, it is not uncommon to force ourselves to undertake a job in order to avoid detrimental effects which are predicted to be generated if we decline the job request.

As such, compulsion itself can be considered a daily occurrence. If all acts of placing pressure on someone by requesting a job were considered crimes, socioeconomic activities would be unsustainable.

In addition, the imposition of criminal penalties is the most stringent type of exercise of government authority over individuals. This is why it is necessary to draw an objective line between coercion which should be punished as a crime and coercion which should not be punished, based on explicit criteria that can be understood by everyone, without viewing it subjectively or emotionally.

However, as a matter of fact, this is quite a difficult task.

One of the clues to thinking about this issue is blackmail. Blackmail refers to an act of demanding money or goods from someone by threatening to reveal information which the person does not want anyone to know. It is taken for granted that blackmail constitutes the crime of extortion.

However, depending on the perspective taken, it is possible to consider such blackmail as a transaction under which information that deserves to be disclosed is kept secret in return for money or goods.

For example, when someone demands that you pay 1 million yen if you do not want certain information to be revealed, you can consider whether or not prevention of disclosure of the information is worth 1 million yen to you and if you do not think so, you can conclude that you do not care about disclosure of the information.

If the demanded amount is 100,000 yen and you do not mind paying the amount, the information will be kept secret in return for 100,000 yen. This is not different from the way in which normal transactions are made.

In other words, although the person who is being blackmailed tends to be considered as being coerced to deliver money or goods, it is also possible to think that the person is offered an option of preventing the secret from being disclosed in return for money or goods. In such a case, instead, the freedom of choice can be said to have been expanded.

This is an issue known as “the paradox of blackmail.” This issue provides a perfect clue to thinking about the objective line between those types of coercion for which criminal penalties are imposed and other types of coercion.

Can we provide a logical explanation for the paradox of blackmail?

Many scholars have tackled this difficult issue and have tried to explain the unfairness of blackmail in various ways.

First, there is an opinion that blackmail differs from normal transactions in that the blackmailer gains persistent dominance over the blackmailee.

It is true that as long as a blackmailer retains the information about which a person can be blackmailed, the blackmailer can repeatedly blackmail the person for life. Actually, it is rare that the blackmailer stops blackmailing the person after receiving money or goods only once. Instead, usually, blackmail is repeated several times.

However, this opinion leads to the conclusion that if a blackmailer stops blackmailing a blackmailee after receiving money or goods only once, such blackmail will be recognized as a transaction which need not be punished. In addition, even if blackmail is repeated several times, there will be no grounds for punishing the first blackmail. Is this opinion acceptable to us?

Second, there is an opinion that the victim of blackmail is not the blackmailee but the third party who has a legitimate interest in the information about which the blackmailee is blackmailed, and the third party incurs damage in the form of violation of his/her right to know as a result of concealment of the information.

For example, if a person who has become aware of a husband’s extramarital affair blackmails the husband and covers up the information in return for money, the victim is the wife who lost the opportunity to realize her husband’s extramarital affair.

Although, at first glance, this opinion seems acceptable, according to this, the husband is not the victim of blackmail but the accomplice who violated the wife’s right to know with the blackmailer.

However, the reality is, if the blackmailer is arrested for extortion, the husband will be treated as a victim.

Indeed, if the blackmailer is arrested, the wife may realize her husband’s extramarital affair and seek divorce. However, whether blackmail deserves punishment is a different matter from the divorce dispute.

In any case, the idea of considering this husband and the blackmailer as accomplices seems go against our instincts.

Third, there is an opinion that blackmail is unjustified in that a high amount of money is demanded. However, whether the price for the information is too high or not is left to the blackmailee’s judgment. If the blackmailee feels the price is too high, there will be an option of not paying the demanded amount.

I think this is not different from the trade in works of art or other similar goods. A person who is not interested in art may feel that it is unreasonable that a certain painting costs millions of yen. However, this is a free transaction made between the parties.

In addition, the situation where information is used as a tool for conducting business is the same with journalists. Of course, I do not mean that acts of blackmail are put in the same category as activities of journalists. However, we can say that they are the same in that information is used as a tool for conducting business. It is impossible to criminalize acts of using information as a tool for conducting business.

On the other hand, some explain that blackmail should be prohibited because even if a blackmailee feels that the demanded amount is too high, the blackmailee may have no choice but to pay the amount and some people may try to make money off crime.

Indeed, such things can happen. However, for example, it is doubtful whether sales of idol merchandise can be considered illegal just because some people commit crimes to get money to buy idol merchandise.

In other words, we should consider separately an act of blackmail and a crime committed by a blackmailee which is attributable to the blackmail.

After considering in this way whether blackmail deserves punishment, we realize how difficult it is to provide a satisfactory answer to this issue.

In fact, there is a radical opinion that blackmail is an allowable transaction and there is no reason to punish it.

However, if the covering up of misconduct or other inappropriate behavior of which someone has become aware in return for money were regarded as a legitimate means, it would be advantageous for the wealthy but difficult for the poor to have the option. It is doubtful whether such a society can really be regarded as free and fair.

At any rate, no one has provided a perfectly logical explanation for the paradox of blackmail. This means, with respect to the issue of freedom and coercion in society, no one has reached an objective answer acceptable to everyone.

Let’s tackle a common-sense-defying question

Based on common sense, we feel blackmail is wrong. However, when we look deeply at the common sense, it proves to be a very subjective or emotional notion such as a notion that it is impermissible or immoral to extort money or goods from others.

If the Penal Code is easily swayed by these kinds of ad hoc emotional arguments, a highly dangerous situation can arise because, as described above, the imposition of criminal penalties is a stringent type of exercise of government authority.

Of course, common sense is very important. Laws consist of logic, and our common sense underlies them. We can say that what we intuitively feel is wrong has been codified in laws.

On the other hand, human beings have also advanced their common sense. For example, vengeance, which had been a natural course of action until the end of the Edo period, was subsequently abolished, and nowadays, based on common sense, we regard vengeance as a barbaric act.

Actually, the first step in generating this kind of new common sense is a common-sense-defying question by which we call into question the now-existing common sense.

Is it impossible to think that blackmail is a measure to increase options that can be freely chosen? By tackling a seemingly common-sense-defying question, we can take the first step in getting to the heart of matters.

Of course, as seen in the examples of the process of trial and error taken by the scholars who have tried to explain the paradox of blackmail, it is not easy to get an answer to such question.

However, I am of the opinion that, especially in the field of criminal jurisprudence, by tackling a common-sense-defying question and deepening various discussions, objectivity of the utmost limits to punishment will be shared.

As such, I am concerned that society can be made rigid by the current trends where, on social networking sites or in other situations, an act of asking a common-sense-defying question itself tends to be condemned, or those who ask such questions tends to be slandered or libeled.

I would suggest that, with everyday matters as a point of departure, you try to cast doubt on what you have taken for granted or what you have regarded as a common-sense view.

At first, answering your own question is good enough. I expect that you can make some new discoveries by tackling a common-sense-defying question.

* The information contained herein is current as of August 2022.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
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