Kara Sears
The common law crime of solicitation involves persuading or inducing someone to commit a crime. It is a lesser included offense of the completed crime, meaning that a defendant who is tried for a murder cannot later be tried for soliciting someone else to commit that same murder. The act of solicitation itself is considered a crime, and it can occur at both the federal and state levels. To be convicted of solicitation, it must be shown that the defendant intended for the other person to commit the crime and that they encouraged or requested that person to do so.
| Characteristics | Values |
|---|---|
| Definition | Persuading or convincing someone to commit a crime |
| Occurrence | At both the federal and state level |
| Punishment | Jail time or other penalties |
| Nature | Inchoate/preparatory crime |
| Proof | Defendant intended for someone to commit a felony crime of violence |
| Defenses | False accusation, lack of intent, entrapment, mistaken identity, etc. |
| Common types | Solicitation of a crime of violence, solicitation of a minor |
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What You'll Learn
- The crime of solicitation is committed when the defendant encourages another person to commit a crime
- Solicitation is a lesser included offence of the completed crime
- Defences against solicitation charges include lack of intent, mistaken identity, and entrapment
- Solicitation can occur at both the federal and state level
- The crime of solicitation to commit a crime involves the defendant commanding another person to commit a crime
The crime of solicitation is committed when the defendant encourages another person to commit a crime
The crime of solicitation occurs when a defendant encourages another person to commit a crime. It is a "lesser included offense" of the completed crime, meaning a defendant who goes on trial for a murder cannot later be tried for soliciting someone to commit that murder.
Solicitation is an inchoate or preparatory crime, like a criminal attempt or conspiracy. It is a separate crime from the target offense and is considered incomplete or "inchoate" because the defendant did not personally violate a substantive criminal law. In other words, the person solicited does not have to commit the crime for the defendant to be found guilty of solicitation.
To get a conviction for solicitation, a prosecutor must prove that the defendant asked, ordered, encouraged, hired, or otherwise sought to induce another person to commit a crime. The defendant must have intended for the other person to commit the crime. The defendant can be convicted of solicitation even if the person solicited ignores the request or does not go through with the crime.
Solicitation can occur at both the federal and state levels. Under federal law, it is a crime to engage in solicitation to commit a crime of violence. The crime of solicitation is often tied to federal crimes of violence, such as murder, rape, armed robbery, or aggravated assault. Solicitation of a minor is also a federal offense, which can result in up to 20 years in prison and mandatory sex offender registration.
State laws vary, but most states have specific laws that prohibit soliciting prostitution and other sex crimes. For example, in California, it is a misdemeanor to solicit prostitution. In Ohio, the crime of solicitation is in the complicity statute, which states that "No person, acting with the kind of culpability required for the commission of an offense, shall solicit or procure another to commit the offense."
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Solicitation is a lesser included offence of the completed crime
The crime of solicitation involves a defendant advising, encouraging, inducing, requesting, commanding, or hiring another person to commit a crime or join them in committing a crime. Solicitation is a separate crime from the actual criminal act, and the defendant can be convicted of solicitation even if the person solicited does not commit the crime.
Solicitation is considered an "inchoate" or incomplete crime because the defendant does not personally violate a substantive criminal law. It is a preparatory crime, like criminal attempt or conspiracy, and is often paired with another crime. For example, a gang leader who organizes a group of thieves can be charged with soliciting the burglary without having to participate in the burglary itself.
Under common law, solicitation is a misdemeanor, regardless of whether the solicited crime is a misdemeanor or a felony. However, the Model Penal Code makes solicitation punishable to the same extent as the solicited crime, unlike common law, which imposes a lower penalty for solicitation.
In criminal law, a "lesser included offense" is a crime where all the elements necessary to impose liability are also elements of a more serious crime. Solicitation is a lesser included offense of the completed crime because it is a necessary part of the more serious crime. For example, in murder cases, a defendant cannot be put on trial for soliciting someone to commit that same murder, as it is a lesser included offense. Similarly, larceny is a lesser included offense of robbery, as robbery includes all the elements of larceny plus the use of force or intimidation.
Therefore, solicitation is a lesser included offense of the completed crime, and a defendant cannot be charged with both the solicitation and the completed crime.
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Defences against solicitation charges include lack of intent, mistaken identity, and entrapment
The crime of solicitation involves asking or telling someone else to commit a crime, or to join the defendant in committing a crime. It is a preparatory crime, or an inchoate crime, as the defendant did not personally violate a substantive criminal law.
Defences against solicitation charges include:
Lack of Intent
Lack of intent implies that the accused did not have the necessary intention to commit the crime. This defence focuses on disproving the claim that the defendant knowingly sought to engage in illegal activities. This can be a challenging defence to prove, as it requires careful analysis of communication records and the context in which the interaction occurred.
Mistaken Identity
Mistaken identity can occur due to hacked or spoofed accounts, misinterpreted digital evidence, or the use of shared devices or accounts. A strong defence strategy may involve digital forensic experts who can analyse online activity and establish whether the defendant was the true user.
Entrapment
Entrapment occurs when law enforcement induces an individual to commit a crime they would not have otherwise committed. This often arises during sting operations, and to establish this defence, one must show that law enforcement initiated the interaction and encouraged illegal behaviour. This defence can be challenging to prove but may be effective when undercover officers have crossed legal boundaries.
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Solicitation can occur at both the federal and state level
The crime of solicitation can occur at both the federal and state levels. Solicitation is the act of inducing, requesting, commanding, or otherwise persuading someone to commit a crime. This underlying crime is known as the "'target offense".
At the federal level, solicitation to commit a crime is itself a crime. Under federal law, it is a crime to engage in solicitation to commit a felony or a federal crime of violence, such as murder, rape, armed robbery, or aggravated assault. The government must prove that the defendant intended to engage another person to commit a felony crime of violence and that the defendant solicited, commanded, induced, or sought to persuade the person to commit a federal crime. For example, if a person offers someone money to kidnap another person, that would constitute a solicitation of the target offense of kidnapping.
At the state level, the laws regarding solicitation vary. In some states, such as California, solicitation requires a completed communication, while in other states, such as Ohio, the underlying crime must have occurred for solicitation to be charged. Most states have specific laws that prohibit soliciting prostitution and other sex crimes. Additionally, in some jurisdictions, the term solicitation implies a commercial element, such as payment.
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The crime of solicitation to commit a crime involves the defendant commanding another person to commit a crime
The crime of solicitation involves a defendant commanding another person to commit a crime. It is a "lesser included offense" of the completed crime, meaning a defendant who is tried for a murder cannot later be tried for soliciting someone else to commit that same murder. Solicitation is considered an incomplete or "inchoate" crime as the defendant did not personally violate a substantive criminal law.
Solicitation can occur at both the federal and state levels. Under federal law, it is a crime to engage in solicitation to commit a crime of violence. The crime of solicitation is committed when the defendant advises, encourages, induces, or requests another person to either commit a crime or join the defendant in committing a crime. The defendant must have intended for the other person to commit the crime.
To get a conviction for solicitation, a prosecutor must prove that the defendant asked, ordered, encouraged, hired, or otherwise sought to induce another person to commit a crime. The defendant must have intended for the other person to commit the crime. The prosecutor must also prove that the defendant commanded, induced, or otherwise endeavored to persuade the other person to commit the felony crime.
There are several legal defenses against federal solicitation charges. For example, lack of intent or knowledge—if the defendant can demonstrate that they did not intend for another person to commit an illegal act, or they were not aware that the act they were encouraging was illegal, they may be able to avoid a solicitation conviction. Another defense is mistaken identity, where the defendant may have been falsely accused if the conversation took place online or through an instant messaging app.
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Frequently asked questions
Solicitation is the act of offering or attempting to purchase goods and/or services. It is also commonly used to refer to the act of inducing or persuading someone to commit a crime.
The crime of solicitation occurs when a person encourages, requests, commands, or otherwise attempts to cause another person to commit a crime. The defendant must have intended for the other person to commit the crime.
The penalties for solicitation vary depending on the jurisdiction and the nature of the underlying crime. In some cases, solicitation may be charged as a misdemeanor, while in other cases, it may be charged as a felony. The federal statute prohibiting soliciting a crime of violence carries up to half the maximum term of imprisonment and up to half the maximum fine for the intended offense.
Yes, solicitation is considered an "inchoate" or "incomplete" crime, which means that the underlying crime may never occur. You can be charged and convicted of solicitation even if the underlying crime is never committed or attempted.
Defences against charges of solicitation include lack of intent, mistaken identity, and entrapment. The defendant may argue that they were falsely accused, that they did not intend for the other person to commit the crime, or that they were coerced by law enforcement into committing the crime.
