MPC § 5.02: Criminal Solicitation
What does Criminal Solicitation (Model Penal Code) provide?
Section 5.02 defines criminal solicitation. A person is guilty of solicitation to commit a crime if, with the purpose of promoting or facilitating its commission, they command, encourage, or request another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime, or that would establish their complicity in its commission or attempted commission. The key mental state is purpose — the solicitor must have the conscious object of promoting or facilitating the crime.
Source: Model Penal Code § 5.02
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Summary
Section 5.02 defines criminal solicitation. A person is guilty of solicitation to commit a crime if, with the purpose of promoting or facilitating its commission, they command, encourage, or request another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime, or that would establish their complicity in its commission or attempted commission. The key mental state is purpose — the solicitor must have the conscious object of promoting or facilitating the crime.
Solicitation under the MPC is complete upon the asking, regardless of whether the solicited person agrees, attempts, or completes the crime. The MPC also provides that it is immaterial under Section 5.02(2) that the actor fails to communicate with the person they solicited, provided that their conduct was designed to effect such communication. Thus, if D writes a letter soliciting V to commit murder but the letter is intercepted, D is still guilty of solicitation.
Section 5.02(3) provides a renunciation defense. It is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded them not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of their criminal purpose. This requires active prevention, not merely a change of heart — the solicitor must take affirmative steps to prevent the crime.
Key Provisions
5 essential provisions of § 5.02
Guilty of solicitation when one commands, encourages, or requests another to engage in criminal conduct with the purpose of promoting or facilitating the crime
Solicitation is complete upon the asking — no need for the solicited party to agree or act
Uncommunicated solicitation is still criminal if the actor's conduct was designed to effect communication
Renunciation defense: actor must persuade the other not to commit the crime or otherwise prevent it, manifesting complete and voluntary renunciation
Solicitation merges with the completed offense or attempt if the solicited crime is committed or attempted
MPC vs. Common Law
How the MPC approach to criminal solicitation differs from common law
At common law, solicitation was a misdemeanor regardless of the seriousness of the solicited crime, and many jurisdictions limited it to solicitation of specific serious offenses like murder or arson. The MPC makes solicitation available for any crime and grades it based on the seriousness of the solicited offense. The common law also generally required that the solicitation be communicated to the other party — the MPC's coverage of uncommunicated solicitation is broader. The common law typically did not recognize a withdrawal or renunciation defense for solicitation (once the words were spoken, the crime was complete), while the MPC provides an affirmative defense if the solicitor successfully prevents the crime. The MPC also clarifies the relationship between solicitation and attempt through its merger rules.
Exam Relevance
How § 5.02 appears on criminal law exams
Solicitation appears on exams both as a standalone issue and in connection with complicity and conspiracy. Common patterns: D asks E to kill V — even if E refuses, D is guilty of solicitation under the MPC. If E agrees, this may also constitute conspiracy (Section 5.03). If E completes the crime, D is liable as an accomplice (Section 2.06) and the solicitation merges. Key issues to spot: whether the defendant had the purpose to promote the crime (not just knowledge); whether the solicitation was communicated; and whether the renunciation defense applies. Students should also compare solicitation with attempt — under the MPC, solicitation of another can itself constitute a substantial step for attempt purposes.
Related Sections
Sections frequently studied alongside § 5.02
More from Article 5 — Inchoate Crimes
Other sections in Article 5