Solicitation occurs when someone asks, requests, hires, commands, or encourages someone else to commit a crime, such as murder or prostitution. Neither party needs to actually perform an act in furtherance of the crime; the crime of solicitation occurs at the moment the solicitation is communicated to another person. The person who is solicited does not even have to agree to commit the crime. The person accused of solicitation must have intentionally requested the other person to commit the crime (with the specific intent that the other person actually commit the crime).
What Is the Model Penal Code?
State laws on solicitation are largely influenced by the Model Penal Code. The Model Penal Code is a penal code created by law professors, judges, and lawyers. It is a model of how those in the legal field believe criminal laws should be. It is not the law and has no binding effect, but it has influenced many state laws.
What Are State Laws Concerning Solicitation?
The Model Penal Code has stated that solicitation requires that a person:
- Intends to promote or facilitate the commission of a crime
- Commands, encourages, or requests another person to commit the crime
Many states have followed the Code's provisions and have solicitation statutes for all crimes or all felonies. Some states, however, only have solicitation statutes for certain crimes.
Why Do Some States Have Different Degrees of Solicitation?
Solicitation can differ in degrees based upon the age of the solicitor, the age of the solicited, whether the crime is a felony or misdemeanor, and the exact nature of the crime. The age of the parties’ matters when the crime discussed is prostitution or statutory rape. Some states may organize their solicitation in the following manner, although this will certainly differ from state to state:
- First Degree – Person over eighteen, with intent, solicits a minor, sixteen years or younger, into committing a major felony. Such major felonies include murder and rape.
- Second Degree - Person, with intent, solicits another adult into committing a major felony. Such major felonies include murder and rape.
- Third Degree - Person over eighteen, with intent, solicits a minor, sixteen years or younger, into committing a minor felony.
- Fourth Degree - Person, with intent, solicits another adult into committing a minor felony.
- Fifth Degree - Person, with intent, solicits another person to commit a misdemeanor.
Are there Defenses to Solicitation?
The Model Penal Code does create a defense of renunciation for solicitation. If the solicitor has completely and voluntarily renounced his criminal intent and has either persuaded the solicited person not to commit the crime or has so prevented him in some other way, the solicitor has successfully renounced the crime of solicitation. He has renounced his criminal purpose. Some courts will allow this defense. Also, solicitation does not amount to attempt to commit the solicited crime unless the solicitor has made preparations with the solicited in furtherance of the crime.
Solicitation is also a non-merger crime: a person cannot be charged with both solicitation of a crime and the actual crime itself. The prosecutor must decide which crime is heavier. This can work in a defendant’s favor if the prosecution is inexperienced and decides to prosecute a crime which is harder to prove.
Do I Need a Criminal Law Attorney?
If you are accused of solicitation, a criminal law attorney would be able to help you put together your case. A lawyer would be able to inform you of the laws of your jurisdiction and how solicitation is treated.