The continued rise of sextortion and blackmail

There has been a dramatic and worrying increase in the number of ‘sextortion’ cases over the past year, with an unprecedented number of victims coming forward to seek advice on how to deal with the often-distressing repercussions. 

Sextortion (sexually coerced extortion) is a form of blackmail involving a threat to share or make public, intimate images (still or moving) or information, unless financial (or other) demands are met. Blackmail is, of course, a criminal offence, which can and usually should be reported to the police. However, due to the age of many victims, and the shame, anxiety or embarrassment that comes with being a victim, attempts are often made to deal with threats without involving others, in the hope that it will all just go away. Unfortunately, it often doesn’t. 

Such is the scale of the problem that, in April 2024, the National Crime Agency (NCA) issued an alert for UK education settings reporting a rise in cases, warning of the dangers and giving advice as to how to deal with attempted sextortion. The alert explained, ‘Financially motivated sexual extortion is usually carried out by organised crime groups (OCGs) based overseas who are typically motivated by money. These groups target all ages and genders however, a large proportion of cases have involved male victims aged 14-18.’ 

The advice from the NCA where a child is targeted is not to pay, to stop contact, and to block the perpetrator. Easier said than done, particularly if you are a child. I have seen children ‘pay’ by sending further intimate images of themselves in the hope the blackmail will stop. Payment will often lead to further attempts at blackmail, rather than the activity ceasing. The NCA alert also explains that a child or young person is never to blame for becoming a victim. Young people tend to fall victim to sextortion as a result of grooming or manipulation by OCGs. It is often impossible to know whether the person you are ‘courting’ online is a genuine love interest or part of an OCG; they deliberately aim to mimic the interest, love and affection we all seek. Vulnerable young people are cognitively less well equipped and may turn a blind eye to red flags when they are apparently being offered intimacy.

Adults can, and often do, become sextortion victims, too. High-net-worth individuals can be targeted for obvious reasons: they are known to have the means and motivation to pay to protect their reputation and many people of normal means will be willing to pay in order to protect their job, family or romantic relationships.

It is encouraging to see the commitment from law enforcement agencies to address sextortion cases by providing proactive advice, supporting victims and gathering evidence and intelligence, which may lead to OCGs being dismantled. However, there are other potential routes which may help slow or stop this epidemic.

Does the solution lie in law?

In many cases, an act of sextortion is likely to amount to the criminal offence of blackmail, contrary to Section 21 of the Theft Act 1968. This is a serious offence, triable only on indictment at the Crown Court and attracting a maximum penalty of 14 years’ imprisonment. According to the Sentencing Council, however, the offence does not commonly reach the courts. In 2022, only 140 offenders were sentenced for blackmail at the Crown Court. 

There is no element of dishonesty to blackmail; rather, it is made out when a person ‘with a view to gain for themselves or another or with intent to cause loss to another’ makes ‘any unwarranted demand with menaces’ (Section 21(1)). 

The provision goes on to state that a demand with menaces is unwarranted unless the person making it believes that they have ‘reasonable grounds for making the demand’ and ‘that the use of the menaces is a proper means of reinforcing the demand’. This will clearly be applicable only in exceptional and specific circumstances. For instance, a threat to make a report to the police regarding the commission of an offence, is capable of founding a charge of blackmail, notwithstanding that the ‘victim’ in this scenario, is genuinely believed to have committed a crime. This is because reinforcing the demand with a menace is not reasonable.

Section 21(2) makes clear that the nature of the act or omission demanded is immaterial (and that it is also immaterial whether the menaces relate to action to be taken by the person making the demand); however, elsewhere in the Theft Act (Section 34(2)), ‘gain’ and ‘loss’ are defined as being limited to money or other property. A demand for sexually explicit images where no money is involved will therefore not normally amount to blackmail (although other offences may well be committed).

As to the meaning of ‘menaces’, this will be left to the jury, as there is no statutory definition. However, there is plenty of case precedent to draw on. The Crown Prosecution Service (CPS) guidance on blackmail cites R v Garwood (1987) Cr App R 85 as authority for the argument that the jury may need guidance on ‘menaces’, where the victim is unusually timid or has a particular phobia and this was exploited by the defendant; and R v Clear (1968) 52 Cr App R 58, where the victim was not in fact affected by the threat made by the defendant. In both of these cases, the threats were capable of amounting to ‘menaces’.

Of course, sextortion is a very specific subset of the broader offence of blackmail and each case will have its own particular facts and circumstances to be taken into account. There will be a number of – often emotive – human and legal issues at play in a sextortion case.

For example, the issue of consent may arise, where the defendant claims that some or all of the images that are the subject of the menace were provided consensually. This in turn leads to arguments around implied consent, withdrawal of consent and the retention of images beyond the termination of consent. Section 21 does not cover such issues; neither does the Sexual Offences Act 2003 or the revenge porn legislation found at Section 33 of the Criminal Justice and Courts Act 2015 (as amended). There may be a compelling argument here for legislative change.

Provided some part of the offence relates to England and Wales, the police have jurisdiction to investigate and subsequently prosecute. The difficulty that usually leads to inaction is in securing a ‘suspect’ within the jurisdiction to prosecute. However, effective protection can be short of prosecution. Clear and determined communication from the police to a blackmailer, perhaps setting out the offence(s) committed, the penalty and requesting they cease and desist may well deter the opportunistic blackmailer. Similarly, the entry of the details they do have on international databases that might triangulate the identity of the blackmailer over time is better than no protection at all.

Sextortion will frequently involve threatened or actual posting of images on websites and/or social media platforms. Getting images taken down from sites can be a difficult and frustrating process. Much more could be done on improving takedown processes and speeds of social media platforms, for example creating a defined route for blackmail/sextortion cases. Helpfully, the Online Safety Act 2023 lists ‘intimate image abuse’ as a priority in terms of the illegal content that platforms need to protect users from. The powers of Ofcom, the agency charged with making online services safer for users and regulating companies that publish or control online information, are not limited to the UK. This means it may be possible to pursue OCGs operating from outside the country more effectively, although questions remain regarding Ofcom’s resources and capabilities. 

Prosecuting blackmail involves particular challenges

Unlike victims of rape and other sexual offences, victims of sextortion-based blackmail are not automatically granted anonymity if their blackmailer is prosecuted. While an application for anonymity can be made (the CPS website contains a summary of the available protections), it cannot be made in advance of the proceedings and so the fear of ignominy that made the victim vulnerable in the first instance can act as a disincentive to assist a prosecution. Adding blackmail to the list of offences to which the Sexual Offences (Amendment) Act 1992 applies would be a conclusive fix for this problem. 

The CPS currently seeks to ameliorate the concerns raised by adult witnesses in their Prosecutor’s Pledge. The CPS set out several steps they can and will take to ensure the victim is able to effectively participate in proceedings. Typically, this will include special measures, such as screens to obstruct the line of sight between the victim and the defendant at court or giving evidence from another room in the court house via video link. In ‘exceptional circumstances’ this can include the CPS making an application to court to protect the identity of the victim. The relevant legislation is found in Part 3 Chapter 2 of the Coroners and Justice Act 2009. The conditions set out in Section 88 are hurdles designed to protect the fundamental principles of open justice.

Child victims are in a more advantageous position in that life-long anonymity can be granted to victims and witnesses pursuant to Section 45A of the Youth Justice and Criminal Evidence Act 1999. The prosecutor must satisfy the court that: (a) the quality of any evidence given by the person, or (b) the level of cooperation given by the person to any party to the proceedings in connection with that party’s preparation of its case, is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings. The power restricts reporting the identity of child victims or witnesses who appear in magistrates or crown courts.

Finally, sentencing for sextortion cases should also be looked at carefully. Earlier this year, the Sentencing Council conducted a three-month public consultation on how blackmail, kidnap and false imprisonment cases are handled in light of the fact that there are currently no guidelines for those offences, despite their severity. The consultation acknowledged the synergy between blackmail and offences relating to actual and threatened disclosure of private sexual images, but did not include the latter in its consultation (due to changes in legislation relating to the Online Safety Act 2023).

The Sentencing Council’s consultation on blackmail did not specifically refer to ‘sextortion’-type cases, although the proposed culpability and harm factors will be applicable in those cases. For example, a case involving an OCG targeting a vulnerable teenager would be very likely to fall within the proposed definition of high culpability (which includes the factor ‘deliberate targeting of particularly vulnerable victim and/or their family’) and, given the nature of ‘sextortion’, it is likely that at least ‘some distress’ will be caused to the victim, placing the offence into proposed harm Category 2 at the lowest.

However, the overlap between sextortion as a subset of blackmail and an offence of threatened disclosure of private sexual images could in practice create a lacuna in prosecuting and/or sentencing, leading to uncertainty for both defendants and victims. 

It will be interesting to see the Sentencing Council’s response to the consultation when this is published in due course.

Whether the threat comes from a jilted lover, an OCG or an opportunistic chancer, being the victim of sextortion is traumatic and it is not difficult to see why some, particularly children and the vulnerable, view taking their own life as a realistic option. While the law now has the main ingredients at its disposal, which should theoretically allow sextortion cases to be dealt with more effectively, the current protections require review and consolidation as this is a type of offence which is unfortunately now part of the landscape we all have to navigate.