Inchoate crimes; parties - Solicitation

Learning Outcomes

After reading this article, you will be able to identify the elements of solicitation, distinguish solicitation from attempt and conspiracy, understand the doctrine of merger, and recognize the available defenses. You will also be able to apply these principles to MBE-style questions and avoid common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the law of inchoate crimes and the role of parties in criminal liability. In your revision, focus on:

  • The definition and elements of solicitation.
  • How solicitation differs from attempt and conspiracy.
  • The doctrine of merger as it applies to solicitation.
  • Defenses to solicitation, including withdrawal and impossibility.
  • The liability of parties for inchoate offenses.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following best describes solicitation?
    1. An agreement between two or more people to commit a crime.
    2. An act that is a substantial step toward committing a crime.
    3. Urging, requesting, or commanding another to commit a crime with intent that the crime be committed.
    4. A completed criminal offense.
  2. If a defendant solicits another to commit burglary, but the other person refuses, the defendant is:
    1. Not guilty of any crime.
    2. Guilty of solicitation only.
    3. Guilty of conspiracy.
    4. Guilty of attempt.
  3. Which defense is generally NOT available to a charge of solicitation?
    1. Legal impossibility.
    2. Voluntary withdrawal.
    3. Lack of intent.
    4. The solicited person was acquitted of the substantive offense.

Introduction

Solicitation is one of the three classic inchoate crimes tested on the MBE, along with attempt and conspiracy. Inchoate crimes involve steps taken toward committing a substantive offense, but fall short of completion. Solicitation focuses on the act of encouraging or requesting another to commit a crime, regardless of whether the crime is actually carried out.

Key Term: Solicitation
The act of intentionally urging, requesting, or commanding another person to commit a criminal offense, with the purpose that the crime be committed.

Elements of Solicitation

To prove solicitation, the prosecution must establish:

  1. The defendant intentionally invited, requested, commanded, or encouraged another person to commit a specific crime.
  2. The defendant had the purpose (specific intent) that the other person commit the crime.

No overt act or agreement is required. The crime is complete once the request or encouragement is made, even if the other person ignores or rejects the solicitation.

Key Term: Specific Intent
The mental state in which the defendant acts with the conscious objective or purpose to bring about a particular result or offense.

Scope and Application

Solicitation applies to all substantive crimes, including felonies and certain misdemeanors. The offense is committed even if the person solicited is not capable of committing the crime (e.g., an undercover officer).

Solicitation is often tested in scenarios where the defendant's conduct stops after the request, or where the solicited person refuses or is unable to carry out the crime.

Worked Example 1.1

A asks B to set fire to a rival's warehouse. B refuses and walks away. Has A committed a crime?

Answer:
Yes. A is guilty of solicitation to commit arson. The crime is complete when A intentionally requests B to commit arson, regardless of B's response.

Relationship to Attempt and Conspiracy

Solicitation is distinct from attempt and conspiracy:

  • Solicitation requires only the act of asking or encouraging another to commit a crime, with intent that the crime be committed.
  • Attempt requires a substantial step toward the commission of the crime, beyond mere preparation or encouragement.
  • Conspiracy requires an agreement between two or more persons to commit a crime, plus (in most jurisdictions) an overt act in furtherance of the agreement.

Key Term: Merger (Inchoate Crimes)
The doctrine that prevents a defendant from being convicted of both solicitation and the completed offense or a greater inchoate offense (such as conspiracy or attempt) based on the same conduct.

Key Term: Conspiracy
An agreement between two or more persons to commit a criminal offense, with intent that the crime be committed, and (in most jurisdictions) an overt act in furtherance of the agreement.

Worked Example 1.2

C asks D to rob a bank. D agrees, and they plan the details. Before the robbery occurs, police arrest both. What crimes have been committed?

Answer:
C and D are guilty of conspiracy to commit robbery. The solicitation merges into the conspiracy, so C is not separately guilty of solicitation.

Merger Doctrine

Solicitation merges with the completed substantive offense if the crime is carried out. It also merges into conspiracy or attempt if the defendant's conduct progresses to those offenses. A defendant cannot be convicted of both solicitation and a greater inchoate or completed offense for the same conduct.

Exam Warning

On the MBE, if the person solicited actually commits the crime, the solicitor is guilty as an accomplice to the substantive offense, not solicitation. If the solicitor and the solicited person agree to commit the crime, the solicitor is guilty of conspiracy, not solicitation.

Defenses to Solicitation

  • Withdrawal or Renunciation: Generally, withdrawal is not a defense to solicitation once the request is made. Some jurisdictions allow withdrawal as a defense if the defendant prevents the crime and renounces the solicitation before the crime is committed.
  • Impossibility: Legal impossibility (the act solicited is not actually a crime) is a defense. Factual impossibility (the crime could not be completed due to unknown facts) is not a defense.
  • Lack of Intent: If the defendant did not intend the crime to be committed, there is no solicitation.

Worked Example 1.3

E asks F to steal a car, but the car is actually a decoy owned by police. F refuses. Is E guilty of solicitation?

Answer:
Yes. Factual impossibility (the car could not be stolen) is not a defense. E is guilty of solicitation because the request was made with intent that the crime be committed.

Parties to Solicitation

Only the person who makes the request or encouragement is guilty of solicitation. The person solicited is not guilty of solicitation, but may be guilty of attempt, conspiracy, or the substantive offense if they proceed further.

Key Term: Accomplice
A person who intentionally aids, encourages, or assists another in committing a crime, with the purpose that the crime be committed.

Solicitation and Accomplice Liability

If the solicited person commits the crime, the solicitor may be liable as an accomplice to the substantive offense. The solicitor is not guilty of solicitation in this scenario, due to merger.

Revision Tip

Always check whether the facts support attempt, conspiracy, or the completed crime. If so, solicitation merges and is not a separate offense.

Key Point Checklist

This article has covered the following key knowledge points:

  • Solicitation is the intentional urging or requesting of another to commit a crime, with specific intent that the crime be committed.
  • The crime is complete upon the request; no agreement or overt act is required.
  • Solicitation merges into conspiracy, attempt, or the completed offense if those crimes occur.
  • Withdrawal is generally not a defense, but legal impossibility is.
  • The solicitor may be liable as an accomplice if the crime is committed.
  • Only the solicitor is guilty of solicitation; the person solicited may be guilty of other offenses.

Key Terms and Concepts

  • Solicitation
  • Specific Intent
  • Merger (Inchoate Crimes)
  • Conspiracy
  • Accomplice
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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