Solicitation

Some of the most difficult questions within the subject of Criminal Law are found within the topic of inchoate offenses.  Within these offenses are the following crimes: solicitation, conspiracy, and attempt.

Like most aspects of Criminal Law, the elements will guide the analysis.  The following are the aspects of solicitation that often pop up in the questions and therefore should be known well:

Solicitation requires that a person incite, counsel, advise, urge, or command another to commit a crime with the intent that the person solicited commit the crime.  The fact that the person must intend that the other commit the crime makes this a specific-intent crime.  Importantly, it is not required that the person solicited actually respond affirmatively and commit the crime.  So, for example, if x commands y to commit a crime and x intends for y to actually commit that crime, the fact that y denies x's command has no bearing on the analysis as to whether x has committed the crime of solicitation; the crime is in the command itself.

It is also not a defense that the person solicited is not convicted of the offense solicited, nor is it a defense that the offense solicited could not in fact have been successful.  Withdrawal is always worth considering in Criminal Law, and with solicitation most jurisdictions have held that withdrawal is not a defense.   One important defense to note, however, is a situation in which the solicitor could not have been found guilty of the completed crime because of a legislative intent to exempt the solicitor.  For example, a minor female cannot be guilty of solicitation for the crime of statutory rape by urging an adult male to have intercourse with her because the legislative intent is to not find the minor guilty of statutory rape in such a situation once the crime is completed.

Let's assume that the person solicited actually completes the solicited crime. In such an instance both the person solicited and the solicitor can be held liable for that completed crime.  Similarly, if the person solicited commits acts which would qualify for the crime of attempt, both the person solicited and the solicitor can be liable for attempt. And finally if the person solicited agrees with the solicitor to commit a crime but then chooses not to commit it, don't forget that both the solicitor and the person solicited might be liable for conspiracy. In all of these circumstances, though, the solicitor will not be liable both for the solicitation and the completed crime.  The crime will merge with the solicitation so that the solicitor will be liable either for the solicitation or the completed crime but not for both.

***Note: Although the default rules on the MBE require a knowledge of the common law, its important to note that under the Model Penal Code one can renounce (i.e., withdraw from) the solicitation if the solicitor prevents the commission of the crime such as by persuading the person solicited not to commit the crime.