Fundamentals of Criminal Law by Adam J. McKee

Criminal solicitation is a legal term that describes the act of intentionally encouraging, requesting, or commanding another person to commit a crime. This definition involves two critical elements: the act itself (actus reus) and the mindset or intention behind the act (mens rea).

Actus Reus

The concept of actus reus, commonly referred to as the “guilty act,” is a cornerstone in the legal understanding of solicitation. This term captures the physical actions that contribute to the crime, setting it apart from mens rea, the “guilty mind” or intention behind those actions. In the context of solicitation, actus reus is not merely a thought or a wish for a crime to occur; it’s a concrete, deliberate effort to make it happen. Various terminologies like “command,” “encourage,” and “request” are employed to articulate the nuances of this concept. These words might seem synonymous, but each carries its own weight.

To “command” implies an authoritative order, while to “encourage” suggests a softer form of persuasion, and to “request” could be a more polite appeal. Yet, the common thread running through these terms is the act of actively pushing another person toward committing a crime. Simply thinking about wanting a crime to happen isn’t enough; there must be an overt action—whether that action is carried out via speech, written communication, or some other form of directive—that moves someone else to engage in criminal behavior. Thus, actus reus in solicitation marks the critical point where abstract intention crosses over into real-world incitement.

Mens Rea

The notion of mens rea, often described as the “guilty mind,” serves as the psychological pillar in the crime of solicitation, complementing the physical act or actus reus. Mens rea focuses on the mental state and specific intention of the individual who is attempting to persuade another to commit a crime. Unlike actus reus, which deals with the overt actions taken, mens rea dives into the complex realm of what the person was actually thinking or intending at the time. This is no trivial matter; in fact, the presence or absence of a specific intention can be the deciding factor in determining guilt or innocence.

It’s crucial to understand that the intention must be unambiguous and genuine. This isn’t about casual remarks made in jest or comments fueled by momentary frustration. For example, sarcastically suggesting that someone should “rob a bank” because they’re broke doesn’t usually fulfill the mens rea requirement, as it lacks the serious intent for the crime to be executed. The intention must be a carefully formed, deliberate desire for the other person to engage in unlawful conduct.

This mental state often reveals itself through the context in which the actus reus occurs. For instance, the same words could mean different things depending on tone, history between parties, or accompanying actions. Saying “you should steal that” could be a serious directive, a joke among friends, or an exclamation of admiration for an object. The differentiation between these scenarios lies in the mens rea—the genuine, deliberate wish for a criminal act to occur.

Nuances in Liability

When a Joke Doesn’t Count

It’s important to note that not all statements can be considered solicitation. For example, if you make a joking comment to a friend about vandalizing a neighbor’s irritatingly parked car, this would generally not qualify as solicitation. The intent, in this case, is not genuinely for the crime to be committed.

The Grudge Factor

However, the situation changes if you hold a serious grudge against the neighbor and earnestly intend for your friend to destroy the car. In this scenario, the law would likely see you as liable for solicitation.

Legal Classifications and Defenses

Similarity to Attempt

Solicitation and the crime of “attempt” often share a similar legal space, as both involve incomplete actions yet still demonstrate criminal intent. However, the two offenses are distinct in some key ways, reflecting different aspects of criminal behavior that the legal system considers important.

In the case of “attempt,” the focus is on the individual’s actions to carry out a crime, even if the crime was ultimately unsuccessful. For example, if someone tries to steal a car but is caught before driving away, that person may be charged with “attempted theft.” Here, the emphasis is on the action that moves towards completing the crime, signifying that the individual went beyond mere intention and took some substantive steps to commit the offense.

Solicitation, on the other hand, centers on the act of encouraging or requesting another person to commit a crime, rather than trying to commit it oneself. In solicitation, the crime is complete as soon as the request to engage in criminal activity is made. The focus here is on the power of influence and the act of urging someone else to break the law. Unlike “attempt,” there is no need for any substantial steps to be taken toward the actual commission of the crime.

Despite these differences, both crimes hinge on the concept of criminal intent, or mens rea. Whether you’re attempting a crime or soliciting someone else to do it, the law considers the intent behind the action as a crucial component for establishing guilt.

While solicitation and “attempt” both explore the realm of actions that precede the completion of a crime, they emphasize different facets of such behavior. “Attempt” is concerned with the individual’s own actions towards committing a crime, whereas solicitation deals with the act of influencing someone else to engage in criminal activity. These distinctions highlight how the legal system navigates the complexities of actions and intentions that stop short of a completed criminal act but are still considered worthy of legal scrutiny.

The Defense of Renunciation

In legal terms, an “affirmative defense” exists if you voluntarily and completely withdraw your encouragement or request for the crime to be committed. This shows that you have renounced your initial criminal intent, thereby negating your liability for solicitation.

When is Solicitation Complete?

Finality of the Request

Solicitation is considered complete as soon as you make the request for someone else to engage in a criminal act. This is quite different from the laws governing “attempts,” where some substantial step must be taken towards committing the crime.

The Irrelevance of Acceptance or Execution

In the case of solicitation, whether the person you solicited accepts your request or even goes ahead to commit the crime is irrelevant. You become guilty of solicitation the moment you make the request with the requisite criminal intent.

Special Cases: Solicitation as a Separate Offense

In some jurisdictions, solicitation takes on an added layer of complexity when it becomes a separate, stand-alone offense. This is particularly evident in cases involving the solicitation of prostitution. Unlike more generalized forms of solicitation, where the primary crime (like theft or assault) is the focal point, the solicitation of prostitution often becomes the primary offense for which individuals are charged and prosecuted.

Why a Separate Offense?

The reason for this distinction often stems from the specific social and ethical concerns that surround the act of prostitution. The act itself is widely considered to have potential for exploitation and harm, affecting not only those engaged in prostitution but also the broader community. As a result, many jurisdictions have decided to target the act of solicitation itself as a means of deterrence.

By making the solicitation of prostitution a separate offense, lawmakers aim to curb the demand that fuels the sex trade. This legal strategy recognizes that without clients willing to pay for sexual services, the market for prostitution would shrink considerably. Thus, targeting solicitation as its own crime is seen as a way to get to the root of the problem.

Furthermore, defining it as a separate offense allows law enforcement agencies to intervene earlier in the process. Police officers don’t have to wait for a sexual transaction to be completed to make an arrest; they can intervene as soon as an offer or agreement is made. This provides a powerful tool to combat the issue proactively, rather than reactively addressing the aftermath of completed offenses.

The Impact on Legal Outcomes

Because it’s treated as a separate offense, solicitation of prostitution often comes with its own set of legal penalties, separate from those of prostitution or other forms of solicitation. These can range from fines to mandatory education programs to jail time, depending on the jurisdiction and the circumstances of the case.

Summary: A Crime of Intent and Action

Criminal solicitation is a complex topic, but at its core, it involves two fundamental components: actus reus and mens rea. The actus reus is the overt action of encouraging, requesting, or commanding someone else to commit a crime. On the other hand, mens rea pertains to the specific intent behind the act. To be liable for solicitation, both elements must be present: the act of urging someone to commit a crime and the intention that they do so.


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.


Modification History

File Created:  07/12/2018

Last Modified:  09/12/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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