Solicitation Laws

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 What Is Solicitation?

Solicitation is a term that refers to any type of communication, either written or verbal, that is used by a person in order to sell a product of service. As such, acts of solicitation include any advertisement, article, notice, or other communication such as those published in any newspaper, magazine, or similar media or broadcast over television or radio meant to entice an individual into purchasing a product or service.

Solicitation also refers to the process of seeking services or goods from outside sources, such as a local road and bridge department soliciting bids for construction work within their district. In general, solicitation does not always involve criminal acts. However, the act of solicitation may be considered to be criminal solicitation in many different cases.

Although the exact legal definition for criminal solicitation varies by state, in general, criminal solicitation refers to the criminal act of requesting, commanding, or attempting to induce another person to engage in a criminal act. The most common types of criminal solicitation involve the criminal acts of drug dealing and prostitution, both of which are criminal acts.

In general, a solicitation requires two or more parties, a solicitor who is the individual that solicits another party, known as a solicitee, to perform an illegal act. It is important to note that neither party to a solicitation needs to actually perform an act in furtherance of the crime in order to be criminally charged with solicitation.

Instead, the crime of solicitation occurs at the moment the solicitation is communicated to another person. Further, the person who is solicited, i.e. the solicitee, does not even have to agree to commit the crime. Instead, all that a state prosecutor must generally prove in order to convict an individual of solicitation is that the solicitor intentionally requested the other person to commit the crime, coupled with the intent that the other person actually commit the crime.

What Is the Model Penal Code?

The Model Penal Code (“MPC”) is a set of model laws published in 1962 that was designed to guide, assist the United States state legislatures in standardizing the penal law of the United States. In other words, the MPC was created in order to assist legislatures to draft the laws of their states concerning certain criminal acts.

Because of the significance of the Model Penal Code, many state laws are very similarly worded to the criminal statutes that are present in the Code. In general, the Model Penal Code provides a definition of a criminal act and then the criminal elements that are necessary to be present in order for any individual accused of the crime to be convicted of the criminal act.

It is important to note that the definitions and criminal elements provided in the Model Penal Code are not binding on a state’s legislature when they are drafting their laws. However, once again, the Model Penal Code has a heavy influence on state legislatures when they are crafting their laws.

The Model Penal Code provides that a person is guilty of the crime of solicitation if, with the purpose of promoting or facilitating the commission of a crime commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

Further, the Model Penal Code states it is immaterial as to whether or not the solicitor fails to communicate with the person they solicit to commit a crime if their conduct was designed to actually solicit them.

However, the Model Penal Code also provides an affirmative legal defense to the solicitor if, after soliciting another person to commit a crime, they renounce their criminal purpose and persuade the solicitee to not perform the criminal act or otherwise prevent the commission of the crime.

What Are State Laws Concerning Solicitation?

As mentioned above, Each state has their own set of laws regarding what constitutes solicitation. Further, each state is free to draft, and in fact has drafted, their own sets of laws that define the criminal act of solicitation within their state.

For instance, in the case of prostitution, solicitation of prostitution is not necessarily completely illegal in the United States. For instance, the act of prostitution is legal in some parts of Nevada, such as within licensed brothels. Because the act itself is legal, an individual may not be charged with criminal solicitation for soliciting a legal service.

Additionally, counties within a state may choose to allow certain acts within their county. As of 2018, Nevada is the only state within United States jurisdiction that allows for some legal prostitution.

As far as the exact extent of legal consequences a criminal solicitor can expect from a solicitation charge, that will primarily depend on their state’s prevailing laws, as well as their prior criminal record. Examples of common legal consequences for criminal solicitation include:

  • Criminal Charges and Convictions: As previously mentioned, the criminal solicitation charge and related penalties will depend on the state laws and the exact criminal act that was solicited.
    • In most cases criminal solicitation is charged a misdemeanor offense, however the offense may be upgraded to a felony charge if solicitation of a minor has occurred.
    • A misdemeanor offense could include probation, up to two years in a county jail, criminal fines, or a combination of all three;
  • Rehabilitative Programs: An individual found guilty of criminal solicitation could also be required to take an education course, such as an AIDS education course.
    • Some courts may rule that a person found guilty of solicitation will need to participate in certain programs to educate or re-educate the convicted individual on developing better life skills.
    • Oftentimes, upon completion of the educational course, the criminal charges may even be dismissed outright.
    • Community service is another legal consequence and option offered by some courts; or
  • Fines: In addition to criminal restitution fines, there are also statutory fines that may be associated with the criminal act of solicitation that may increase based on frequency of offense.
    • For instance, for a first time solicitation offense there may be statutory fines of up to $1,000, which may increase for each additional offense.

It is important to note that both parties involved in a solicitation agreement, not just the person offering to provide sexual services in exchange for payment, may be charged with prostitution. Further, if there is an additional person involved, they may also be charged as “a party to the offense of solicitation.” This third party is often referred to as the “promoter,” and in regards to the crime of prostitution can include a Madame or Pimp, or anyone who has helped with the solicitation.

Promoters often can face harsher penalties than the original two parties involved in the criminal solicitation act. Further, most anti-solicitation statutes do not require that the person paying for the sexual services and the person receiving the sexual services be the same person in order for there to be charges.

Why Do Some States Have Different Degrees of Solicitation?

Some states may have different degrees of solicitation as a means of separating the criminal severity of the crime being solicited. For instance, charges for solicitation can differ in degrees based upon the age of the solicitor, the age of the solicited party, whether the crime is a felony or misdemeanor, and the nature of the crime.

For instance, when it comes to the crime of solicitation, the age of the parties’ matters as the act of prostitution may constitute statutory rape. Although the degrees of solicitation differ from state to state in general, solicitation is separated into degrees as follows:

  • First Degree: When a person over eighteen, with intent, solicits a minor, sixteen years or younger, into committing a major felony, such as murder and rape, that will likely be first degree criminal solicitation.
  • Second Degree: When a person, with intent, solicits another adult into committing a major felony, such as murder and rape, that will likely be a second degree criminal solicitation;
  • Third Degree: When a person over eighteen, with intent, solicits a minor, sixteen years or younger, into committing a minor felony that will likely be a third degree criminal solicitation;
  • Fourth Degree: When a person, with intent, solicits another adult into committing a minor felony that will likely be a fourth degree criminal solicitation; and/or
  • Fifth Degree: When a person, with intent, solicits another person to commit a misdemeanor that will likely be a fifth or a lesser degree of criminal solicitation.

Are There Defenses to Solicitation?

In short, yes, there are defenses to criminal solicitation. In general, the best affirmative defense to solicitation is a lack of evidence, such as a witness to the arrangement or taped conversations concerning the solicitation, needed for a prosecution to convict the person accused of criminal solicitation beyond a reasonable doubt.

For instance, ambiguous evidence may leave the jury or fact finder doubting that the topic was prostitution, such as agreeing to be a date to a party really meaning being a date to a party.

In some cases, mistakes of fact can also serve as viable legal defenses. For instance, it is not a crime to want or have sex if no compensation has been offered or exchanged. Therefore, some people may be unaware that they are engaging in sexual conduct with a prostitute.

Entrapment is another complicated legal defense. For instance, if an individual is propositioned by an undercover police officer that does not necessarily constitute entrapment, if the person solicited demonstrated some desire to commit the crime. In such cases, the solicited individual could still be found guilty of solicitation.

Do I Need a Criminal Law Attorney?

As can be seen, state laws regarding solicitation vary, as well as the applicable legal punishments. As such, if you have been charged with criminal solicitation in any form, it is in your best interests to consult an experienced criminal law attorney.

A solicitation lawyer will be able to help you understand the charges you face as well as any information pertinent to your specific state. Additionally, an attorney will also be able to help you raise any appropriate legal defenses, and represent you at any in person criminal proceeding.

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