Fundamentals of Criminal Law
Adam J. McKee, Ph.D.
Jack Brown, Ph.D.
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Solicitation involves a statement (either written or spoken) in which an individual intentionally advises, requests, counsels, commands, hires, encourages, or incites another person to commit a crime with the purpose that the other person commits the crime. The intent must be that the crime be committed. A person is not liable for a remark that is intended as a joke or expressed out of sudden frustration or annoyance.
The mens rea of solicitation requires a specific intent or purpose that another individual commit a crime. You would not be liable in the event that you humorously advise a friend to “blow up” the expensive car of a neighbor who regularly parks in your friend’s parking space. On the other hand, you might harbor a long-standing grudge against the neighbor and genuinely intend to persuade your friend to destroy the automobile. The actus reus of solicitation requires an effort to get another person to commit a crime. A variety of terms are used to describe the required act, including command, encourage, and request. The crime of solicitation occurs the moment an individual urges, asks, or encourages another to commit a crime with the requisite intent. The individual is guilty of solicitation even in those instances in which the other person rejects the offer or accepts the offer and does not commit the crime.
Criminal Solicitation (ACA § 5-3-301)
A person solicits the commission of an offense if, with the purpose of promoting or facilitating the commission of a specific offense, he commands, urges, or requests another person to engage in specific conduct which would amount to any of the following:
1. Constitute that offense
2. Constitute an attempt to commit that offense
3. Cause the result specified by the definition of the offense
4. Establish the other person’s complicity in the commission or attempted commission of that offense
Solicitation is classified in the same manner as attempt, with the exception that solicitation of a class C misdemeanor is an unclassified misdemeanor rather than a violation.
It is an affirmative defense to prosecution for solicitation that the defendant prevented the commission of the offense solicited under circumstances manifesting a voluntary and complete renunciation of the criminal purpose.
Solicitation is complete when the request to engage in criminal activity is made, and it does not matter if the person solicited agrees or if the offense is carried out. This is very different from the law of attempt: for an attempt, some substantial step must be taken toward the commission of the crime. Solicitation does not require that any overt act be made.
Modification History File Created: 07/12/2018 Last Modified: 07/12/2018
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