A new kind of crime appears to be on the rise, thanks to the availability of camera phones and the Internet: sextortion. The FBI has defined sextortion as online blackmail, where often explicit images of an individual are used to pressure them and extort more photos, sex, or money from the victims.

If you read the news,  you’re probably familiar with the threats by AMI, a press giant, against Jeff Bezos (Amazon founder, Washington Post owner, and currently the world’s richest man), when it appeared to threaten the release of some salacious photos between Bezos and his girlfriend in exchange for less negative coverage of the current Presidential information.

This would be an example of extortion as defined in the criminal statutes. But, AMI could also argue that their conduct is protected by the freedoms within the First Amendment. In fact, there is some case law that finds that ‘revenge porn’ or sextortion does not fall under an exception to First Amendment protection, meaning that publishing nude selfies of the world’s most richest man could be considered protected speech.

One common method of finding certain victims is through ‘catfishing,’ where people will get into online relationships and convince their ‘partner’ into sharing nude photos or videos of themselves. Mostly, these relationships develop through social media sites like Facebook, Twitter or Instagram. In fact, a 2016 study finds that sextortion is on the rise, although statistics are hard to confirm.

Prosecutors estimate that actual cases of sextortion fall between 3,000 or 6,500 victims. Most do not report the incidents out of shame or embarrassment, and very often there are multiple victims per individual accused of sextortion. If the individual does report the incident, then it can still be difficult for law enforcement to track down the perpetrator.

Usually, this kind of conduct is subject to criminal codes. In New York, it could be either larceny by extortion, or coercion. The former occurs when a person is forced to give up property after being instilled with fear or threatened. (NY Pen. Law 155.05). This charge is a felony and, if convicted, the prison sentence can range anywhere from one to fifteen years in prison.

Coercion, on the other hand, is when there are threats used to induce the victim to either do or not do something. Coercion in the first degree is also a felony, and individuals convicted under the statute (NY Pen. Law 135.65) could be punished with a prison sentence from 3 to 7 years.

Fortunately, the law does allow an affirmative defense for these charges. If the defendant reasonably believes that the threatened action is true, and the only reason they threatened the victim was to compel or induce the victim to take reasonable action to make good their wrongs that were subject to the threats, then that is a defense.

So, if the defendant has threatened to charge the victim with a crime, and he reasonably believed that the person committed the crime and his motivation was to encourage the victim to fix his error, then that could be used in his or her defense. When presenting an affirmative defense, the burden moves to the defendant to prove that defense by a preponderance of the evidence.