Solicitation
Solicitation criminalizes the act of requesting someone to engage in illegal conduct. See Black’s Law Dictionary (6th ed. 1990). Alaska defines solicitation as acting “with the intent to cause another to engage in conduct constituting a crime, the person solicits [another] to engage in that conduct.” AS 11.31.110(a). Solicitation frequently is a precursor to conspiracy since it criminalizes the instigation of an agreement to commit a criminal offense. Solicitation is an independent crime, however, since it is possible that the conspiracy will never be formed, and the target crime may not be committed. Many of the rules that apply to attempt also apply to solicitation.
Solicitation – Voluntary Act
The actus reus of solicitation is generally words that seek to induce another to commit a crime. The term “solicits” is largely undefined, but generally includes such words like asking, inducing, or commanding. Alaska law specifically includes “commands” in the definition. AS 11.81.900(b)(61). However, the Model Penal Code does not require direct communication. It is sufficient if “conduct was designed to effect such communication.” See Model Penal Code § 5.02(2).
Solicitation – Culpable Mental State
Solicitation, like all inchoate offenses, is a specific intent crime. To be responsible, the person must intend to cause another person to engage in conduct constituting a crime. For this reason, solicitation is sometimes referred to as a “double inchoate” crime or an “attempted conspiracy.”
Example of Solicitation
Jimmy believes his friend Troy is a “fence” (i.e., a person who sells stolen property). Jimmy calls Troy and asks him to help him sell some stolen designer shoes. Jimmy is likely guilty of the crime of solicitation to commit theft. Jimmy’s act of “asking” Troy to sell stolen shoes is likely sufficient to establish the voluntary act of solicitation. Further, Jimmy’s desire for Troy to commit the crime of knowingly selling stolen property likely demonstrates Jimmy’s intentional mental state.
Revisiting Sullivan v. State
Recall in the last section you read Sullivan v. State, 766 P.2d 51 (Alaska App. 1988) where the Alaska Court of Appeals found that Sullivan’s act of sending a note to D.T., in which Sullivan asked D.T. to let him touch her “private parts” did not constitute attempted sexual abuse of a minor. Sullivan’s conduct, while repugnant, did not demonstrate a “substantial step” towards the completion of the completed step. In the eyes of the court, Sullivan’s actions were merely preparatory and suspicious; they did not demonstrate a clear, definitive intent to complete the crime.
But most would agree that Sullivan’s conduct is much too dangerous to go unpunished, which the court recognized. Although Sullivan may not have committed attempted sexual abuse of a minor, Sullivan likely committed the crime of solicitation to commit sexual abuse of a minor. As described by the court,
Although Sullivan’s conduct did not qualify as an attempt, it seems to us that his solicitation of D.T. may well have constituted a violation of [solicitation], which provides:
A person commits the crime of solicitation if, with intent to cause another to engage in conduct constituting a crime, the person solicits the other to engage in that conduct.
Alaska [law] expressly provides that, in a prosecution for solicitation, it is not a defense “that a person whom the defendant solicits could not be guilty of the crime that is the object of the solicitation.” … [S]oliciting a person to commit the offense of sexual abuse of a child in the second degree would, like attempt, be punishable as a class C felony. While it is conceivable that Sullivan could have been convicted of solicitation, the state did not charge him [with solicitation]. Solicitation [is] not a lesser-included offense of attempt.
Sullivan, 766 P.2d at 56, n.5. For a more in-depth discussion of this issue see Braun v. State, 911 P.2d 1075, 1083 (Alaska App. 1996).
Solicitation Grading
Solicitation is graded in the same manner as attempt. Solicitation to commit an offense is graded lower than the completed crime, except for solicitation to commit murder. AS 11.31.110(c). Solicitation to commit murder, like attempted murder, is an unclassified offense. AS 11.31.110(c)(1).
Defense to Solicitation – Renunciation
Solicitation contains one primary defense – renunciation. Similar to attempt, a defendant may avoid criminal liability if the defendant voluntarily and completely renounces the criminal act. Also, like attempt, renunciation requires the defendant to thwart the crime solicited. AS 11.31.110(b). Renunciation is an affirmative defense.
It is not a defense to solicitation that the person solicited could not be guilty of the target crime. AS 11.31.110(b)(1)(B). For example, it is not a defense to the crime of unlawful solicitation of a minor that the victims could not commit the target crime (e.g., sexual abuse). See Braun v. State, 911 P.2d 1075 (Alaska App. 1996).
Exercises
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- Nancy asks Jennifer to help her counterfeit twenty-dollar bills. Jennifer refuses. Has a crime been committed in this situation?
- Several years ago, Bob was charged with first-degree murder and determined to be incompetent to stand trial due to his mental illness. At a commitment hearing, experts testified that Bob’s mental illness would last the remainder of his life and he would never be restored to competency. Last week, Bob escaped from the mental institution in which he was being treated. Today, while walking down the street, John (an “up-and-coming” criminal) approached Bob. John said to Bob, “Take this gun; walk into the bank across the street; point the gun at the teller; demand money; and return the money to me.” Bob shrugs and starts to walk across the street. As John watched Bob cross the street, John changes his mind and decides to stop the robbery. He shouts at Bob, but Bob cannot hear him because of the traffic. He tries to tackle Bob, but he falls into an open manhole. Bob successfully robs the bank and comes out with the money just as John is emerging from the manhole and the police are exiting their patrol vehicles. What crimes, if any, has John committed? Why or why not?
