Actus Reus

In general, the actus reus of solicitation is the communication of a request to commit an offense. The person solicited does not need to agree to commit the crime in order for the act requirement to be satisfied. However, under the common law, the communication must be successfully transmitted, while under MPC 5.02(2), the communication does not need to be received.

Under the common law, inviting, hiring, requesting, commanding, or encouraging another to commit a felony or a serious misdemeanor can constitute the act required for a solicitation. Under the common law, a request to commit an attempted crime does not constitute a solicitation (For example, if Jenna asks Mark to steal some candy for her, and Mark thinks that he is stealing, while Jenna knows that the candy is actually free, Jenna is not guilty of solicitation, although Mark would be guilty of attempted theft). Further, a request for the other person to aid the actor in committing a crime does not constitute a solicitation (For example, if Jenna asks Mark if he will be a lookout while she steals some candy, she is not guilty of solicitation under the common law).

MPC 5.02(1) defines solicitation as requesting, commanding, or encouraging another person to commit, attempt to commit, or be an accomplice to any crime.  The MPC broadens the act requirement of solicitation by including requests to commit misdemeanors and requests to attempt and aid in the commission of criminal offenses.  In the examples above, Jenna would be guilty of solicitation in both instances under the MPC.

Mens Rea

Both the MPC and the common law require the solicitor to have the specific intent for the person solicited to commit the crime. A woman who jokingly asks a man to steal a diamond ring for her does not have the requisite mens rea to constitute a solicitation, even if the man actually steals the ring.

Relationship Between Solicitation and Other Inchoate Offenses

A conspiracy is an agreement between two or more people to commit a crime, which makes solicitation an attempted conspiracy. The MPC punishes solicitation and conspiracy the same as other inchoate offenses; under MPC 5.05(1), an inchoate offense is graded the same as the target offense, except when the target offense is a felony of the first degree. At common law, conspiracy was punished more severely than solicitation. Solicitation merges with conspiracy under both the common law and the MPC.

Courts have also grappled with the relationship between solicitation and attempt. Most courts have held that a solicitation, by itself, cannot constitute attempt. However, when combined with other factors, some courts have held that a solicitation can satisfy the requirements for attempt liability. For example, when the solicitation is coupled with a slight act by the solicitor in furtherance of the crime, such as providing a weapon, some courts have found the solicitor liable for attempt. Another way courts have found the solicitor liable for attempt is when the solicitor’s overt acts would have satisfied the actus reus requirements of attempt had the solicitor planned on committing the crime alone. Other courts have held that since solicitors do not intend to commit the crime themselves, they cannot be liable for attempt.

Innocent Instrumentalities

An actor cannot solicit an innocent instrumentality (who, for reasons of mental incompetence or lack of awareness is unable to consent to commit a criminal act).  Instead, the law presumes that the solicitor himself commits the criminal act performed by the innocent instrumentality, which means that the solicitor is punished as the principal for the offense.  Note, however, that an actor who solicits an innocent instrumentality can also be punished for criminal attempt of the substantive offense that the actor solicits (but the attempt punishes the attempted target offense, not the attempted solicitation).

Renunciation

MPC 5.02(3) establishes renunciation as a defense to solicitation. The actor must completely and voluntarily renounce his or her intention to commit the crime, and must also prevent the crime from occurring.