Solicitation

Background. The crime of solicitation has its roots in English common law, at which the solicitation of another to comma a felony, an aggravated misdemeanor, or an offense that disturbed the public peace or was detrimental to the public welfare was punishable as a misdemeanor. Although there are suggestions that the crime first appeared in England as early as 1704, it was not until 1801, in the bellwether case of Rex v. Higgins, 102 Eng. Rep. 269 (K.B. 1801), that solicitation was adjudged to be a distinct substantive common law offense. Holding that the bare solicitation of a servant to steal his master's goods, although the servant had ignored the request, was an indictable offense, the court rejected the contention that the crime punished a person solely for having criminal intentions: "It is argued, that a mere intent to commit evil is not indictable, without an act done; but is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act" (Higgins, 274).

Elements of the crime. Any encouragement, probably including a mere suggestion, was a sufficient actus reus, or guilty act. Even invoking evil spirits to cast a spell or give the evil eye was proscribed. Further, the communication need not be a personal one; solicitation could occur when the inducement was directed to a group of people or to the general public. Nor must the inducement be oral; it could even appear in a newspaper article. But, in the case of a written inducement to commit a crime, there was a split of authority at common law as to whether the communication had to reach the intended party in order to satisfy the necessary actus reus. Those courts that did not find solicitation, however, nevertheless convicted the writer of attempt to solicit, thus criminally punishing the actor for even more distant conduct. In either case, the punishment was justified on the ground that the solicitor's attempt to communicate was sufficient manifestation of his criminal design.

The requisite mens rea, or state of mind, of solicitation was the purpose (sometimes called specific intent) to have the object crime committed. When this mental element concurred in time with the communication, the crime of solicitation was complete. If the solicitor believed, therefore, that the object crime could be consummated, he was liable for solicitation, notwithstanding the impossibility of the crime either at the time of the communication or at some later time.

Defenses. It is unclear whether, at common law, a voluntary and complete renunciation or abandonment of the criminal purpose would serve as a defense to solicitation, for there is no conclusive case law on the point (and as statutory law has now overwhelmed the common law in the area of criminal justice, there is unlikely to be one in the future). The argument in favor of such a defense is that the renunciation demonstrates that the solicitor has negated his prior dangerousness; moreover, the existence of the defense would provide him an incentive to halt his criminal activity before the commission of the crime. On the other hand, to the extent that solicitation aims at one who has indicated his antisocial tendencies, simply because he abandons his criminal intention on one occasion does not necessarily negate his future criminality. He has also planted the seed of criminal conduct in the mind of another.