Solicitation is an inchoate crime that involves seeking out another person to engage in a criminal act. A defendant may be charged with solicitation if he or she requests or induces another person to commit an act that would amount to a felony. The two elements of solicitation are the intent to have someone else commit a crime and an act committed in furtherance of convincing another person to commit a crime.
In order to establish the first element of a solicitation, a prosecutor must show that the defendant affirmatively intended to have another commit a crime. This means that an individual may not be charged with solicitation for mistakenly asking another to commit a crime, often because the individual does not realize that the act is itself a crime. For instance, assume a man believes that his neighbor agreed to let him borrow the neighbor’s lawnmower, but the neighbor did not actually consent. The man asks his son to go get the lawnmower for him from the neighbor’s yard. Even though it would be a larceny for the son to take the lawnmower, the man would likely not be guilty of soliciting his son because the man did not realize that taking the lawnmower was a crime.
Once an individual has the intent to commit a solicitation, the act of solicitation is very easy to complete. All that is required is that the individual encourage or convince another in some way to commit a crime. This can take the form of a request, suggestion or encouragement to complete the crime. It can also involve commanding, forcing, or inducing the other person to commit the crime. As soon as any of these occurs, the crime of solicitation has been completed. Unlike conspiracy or attempt, which require an additional act in furtherance of the crime itself, solicitation does not require that the solicited party actually take any action to commit the crime. Simply asking a person to commit a crime is enough. For example, if a boy walks up to his schoolmate on the street and asks him to shoplift a toy for him, this is solicitation, even if the schoolmate never acknowledges the boy’s request, enters the store, or completes the crime. In fact, should the solicited individual, such as the schoolmate, actually complete the crime, the defendant may be liable not only for solicitation, but also for aiding and abetting the crime as an accessory before the fact. The defendant cannot, however, be charged with solicitation and the crime itself. Like attempt, solicitation merges with the completed crime.
Like attempt, solicitation of a crime is considered to be a lesser version of the crime itself. Accordingly, punishment for solicitation is typically less severe than the punishment would be had the crime been completed. Depending on the underlying crime solicited, solicitation may be charged as a felony or a misdemeanor.
In many states, special statutes have been enacted to address solicitation for prostitution and solicitation of minors. Because these are viewed as particularly offensive crimes, they are typically subject to stiffer penalties that may be as severe as the crime itself. For instance, in many states, solicitation of prostitution can result in jail time, and online solicitation of a minor may result in a defendant being required to register as a sex offender, even if they never actually met the child that was solicited.