Illegality of Blackmail (a test)

I’ve finished Leo Katz’s book. The basic question of the book is “Why is blackmail illegal?” It seems odd that it is illegal — so odd that lawyers have coined the term “The Paradox of Blackmail.” Consider the standard case: I ask you to give me $20,000, and say that if you refuse, I will reveal your infidelities to your wife. It is odd that this is illegal because, each of the things I’ve done, in isolation, is legal: I am allowed to ask you for $20,000, and I am allowed to reveal your infidelities to your wife. Shouldn’t you, as the victim, prefer that I give you the option to prevent me from revealing your infidelities (for a cost), rather than just doing so without your permission? How can you be more wronged by act A (blackmail) which is identical to act B (revealing infidelities) except that act A gives you additional optionality?

I won’t tell you exactly what Katz’s explanation was. I’ll make it more fun by telling you the hypothetical situation which he thinks can be used to show why blackmail is wrong, and then you can try to determine on your own how the situation can be used to explain away the Paradox of Blackmail. The situation is: a burglar enters a person’s house, and finds a safe. He awakens the homeowner and demands the combination to the safe. The homeowner says he won’t give it; the safe has jewelry which, although cheap, has great sentimental value. The burglar says “Tell me the combination, or I’ll make you regret it.” The homeowner replies “Much as I fear physical violence, I’d rather you give me the savage beating than give up what’s inside that safe.” The burglar says “As you wish,” and severely beats up the homeowner. Katz also asks us to a version of this hypothetical where the burglar, in the course of interacting with the homeowner, actually finds a piece of paper with the safe combination, and ignores the homeowners wish to be beaten up rather than burglarized, instead taking the contents of the safe.

Katz thinks that the Paradox of Blackmail can be resolved by considering these 2 hypotheticals, and in particular by considering how the courts would treat the perpetrator of the first crime (who assaulted the homeowner) vs. the perpetrator of the 2nd crime (who followed through with the burglary).

Do you see why Katz thinks that? Do you agree?