Tuesday, November 22, 2016

Wharton's Rule

It's likely that when preparing for the MBE and working through criminal law you'll come across a rule called Wharton's rule   I've noticed in working with students that the rule is tough to pin down and can get a bit convoluted.  But understanding the policy behind it helps to simplify it. 

Wharton's rule states that there can be no conspiracy to commit a crime unless the agreement to commit the crime involves at least one person who is not essential to the commission of the crime to which the conspirators agreed.  An example should help:

The crime of bigamy is committed when a person marries someone while already legally married to another.  Assume that x agrees to marry y even though y is already married to z.  Further assume that this marriage then takes place.  

The crime of bigamy has been committed but because conspiracy does not merge with the crime, an additional question is presented as to whether conspiracy to commit bigamy was committed when the agreement took place.  Bigamy requires at least two parties though (in this case x and y) and so Wharton's rule states that because the crime requires two people, conspiracy to commit the crime will require that at least 3 people agree to commit it.

And the policy behind this rule has a rational basis.  If it weren't the case that at least 3 people were required for conspiracy to commit bigamy then every time bigamy was committed there would also be a conspiracy to commit the crime.   And so since the crime of bigamy in this case could not have been committed by either x or y acting alone, neither x nor y can be found guilty of conspiracy to commit the crime. 

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