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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38773
Experience:  I provide family and divorce law advice to my clients in my firm.
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Over a year ago I intervened in a situation between my (then

Customer Question

Over a year ago I intervened in a situation between my (then girlfriend, now wife) and her son. He was 15/16 at the time and being very disrespectful and said some hurtful things that made his mother cry. I stayed out of it until that point but walked toward him and told him to stop and he had said enough. It made him angry. He balled up his fist, bowed his chest, and told me I had better not touch him. I told him that this was not a good road to go down and neither one of us wanted it go there. I then told him for future reference that threatening me wasn't going to work and I then touched his chest with my finger.

The situation was talked about and his father new about it shortly after. The relationship has been perfectly fine since then. To be honest, he is really a pretty good kid.

Now, over a year later, his father is attempting to blackmail me with calling the police and filling assault charges against me. He said his attorney advised him that if we tried to enforce the current court order, in regards XXXXX XXXXX of the child, that he should report me to the police. I would then lose my CCW permit and probably not be able to ever own a firearm again. I am a NRA Instructor, Gunsmith, and shoot competitively. Plus, I wonder how far he will take this. If I cave now, what with he demand next.

Can something as silly as this bring this level of punishment, especially over a year after it happened? Isn't there a law against blackmail? Do you have any suggestion on how I should handle this?

Thanks
Submitted: 1 year ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

To respond I will have to answer in a very legalistic manner just to explain the limitations of what the other parent can or cannot do. If the limitations are not as you hoped for or expected, kindly do not blame the proverbial messenger in this situation.

To answer directly, under Kansas law it is arguable that you committed both an Assault and a Battery (or a domestic battery) against the child. To commit an assault, the state must have to prove that you intended to place the other person in reasonable apprehension of bodily harm. The threat made, if believed, would constitute enough for an assault claim. Additionally, Battery is proven when it can be shown that you intentionally caused physical contact with someone when it was done in a rude, insulting, or angry manner. In essence it is a situation where the physical contact was unconsented and unwarranted. The touching of the child's chest can be considered battery. Both of these actions are deemed to be misdemeanors which have a 2 year statute of limitations. This isn't quite blackmail since the action did take place, but I can state that it is very highly unlikely that the state would consider pursuing such a very minor altercation. While I realize that you have a lot to lose, potentially letting it go to see if the courts will pursue it may be the best solution.

Here are the underlying statutes:

21-3412: Battery.(a) Battery is:

(1) Intentionally or recklessly causing bodily harm to another person; or

(2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.

(b) Battery is a class B person misdemeanor.

History: L. 1969, ch. 180, § 21-3412; L. 1992, ch. 298, § 11; L. 1993, ch. 291, § 27; L. 1996, ch. 211, § 4; L. 1996, ch. 258, § 13; L. 2001, ch. 177, § 6; July 1.

 

21-3408: Assault. Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.

Assault is a class C person misdemeanor.

History: L. 1969, ch. 180, § 21-3408; L. 1992, ch. 298, § 9; L. 1994, ch. 291, § 22; July 1.


21-3412a: Domestic battery.(a) Domestic battery is:

(1) Intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or

(2) intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.

(b) (1) Upon a first conviction of a violation of domestic battery, a person shall be guilty of a class B person misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the person enroll in and successfully complete a domestic violence prevention program.

(2) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of domestic battery a second time, such person shall be guilty of a class A person misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for domestic violence prevention.

(3) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of domestic battery a third or subsequent time, such person shall be guilty of a person felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $7,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The court shall require as a condition of parole that such person enter into and complete a treatment program for domestic violence. If the person does not enter into and complete a treatment program for domestic violence, the person shall serve not less than 180 days nor more than one year's imprisonment. The 90 days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.

(c) As used in this section:

(1) Family or household member means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and

(2) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:

(A) "Conviction" includes being convicted of a violation of this section or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

(B) "conviction" includes being convicted of a violation of a law of another state, or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;

(C) only convictions occurring in the immediately preceding five years including prior to the effective date of this act shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and

(D) it is irrelevant whether an offense occurred before or after conviction for a previous offense.

(E) A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section or an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits only twice during any three-year period.

History: L. 2001, ch. 177, § 5; L. 2006, ch. 212, § 24; L. 2008, ch. 175, § 1; July 1.

 

 

Good luck.

Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38773
Experience: I provide family and divorce law advice to my clients in my firm.
Dimitry K., Esq. and 8 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

The reason I believe it is blackmail is because he is basically saying... Give me what I want legally and ignore the current order that is in place or I will report you to the police. That seems illegal to me.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Mark.

I can see your point. Technically it would be considered extortion although in Kansas it is listed as 'blackmail'. However the issue here is somewhat more complicated--the other parent has a duty to protect his child from violent or unsafe behavior, so potentially informing you to back off or he will report you might not be enough to claim that a threat was made. If, however, he simply came out and stated that he will report you unless you act as he demands, then you are free to forward the statutory language to him below and explain that if he chooses to go through with it, you will press charges for blackmail, something that is a felony. It should get him off your case since if he will report you you would then have a paper trail (via email), pertaining to his threats and to your response.


Article 34: Crimes Against Persons

Statute 21-3428: Blackmail.Blackmail is gaining or attempting to gain anything of value or compelling another to act against such person's will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation.

Blackmail is a severity level 7, nonperson felony.

History: L. 1969, ch. 180, § 21-3428; L. 1992, ch. 298, § 18; L. 1993, ch. 291, § 42; July 1.

Customer: replied 1 year ago.

Thank you very much for your help.

Expert:  Dimitry K., Esq. replied 1 year ago.

Mark,

You are most welcome and good luck to you!

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Dimitry K., Esq.
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