Defenses and Legal Elements of Solicitation

Fagin didn't need to personally steal anything himself. Under modern statutes, Fagin could face criminal charges for inducing the boys to commit theft under the crime we know as solicitation.

This article will provide an overview of the crime of solicitation, including the offense of solicitation of prostitution. It will provide common elements of these crimes, possible penalties, and legal defenses.

Elements of Solicitation

When people think of solicitation it brings to mind the crime of prostitution. In most jurisdictions, soliciting a person for a sexual act in return for either payment or some other benefit is indeed a crime. In reality, the crime of solicitation occurs in contexts outside the area of prostitution. A more general definition of criminal solicitation includes the following:

• Requesting, encouraging, or demanding someone to engage in criminal conduct
• Intent to facilitate, contribute to, or benefit from the commission of that crime

The crime of solicitation can occur at both the federal and state level. Under federal law, it is a crime to engage in solicitation to commit a crime of violence. The government must prove that the defendant intended to engage another person to commit a felony crime of violence. It must show the offender solicited, commanded, induced, or sought to persuade the person to commit a federal crime.

Solicitation is an inchoate crime. This means it is a preparatory crime like a criminal attempt or conspiracy. Under federal law, the underlying crime that the defendant solicited someone else to commit may never occur. When law enforcement charges someone with solicitation, they may make an arrest and prevent the second criminal act. For example, the police may arrest someone for soliciting a murder for hire or an act of terrorism.

Though state laws vary, to be guilty of solicitation you must request that someone else engage in a criminal offense and have the intention to engage in criminal conduct with that person. States vary as to whether the other person must receive the request, or whether the act of making the request, along with criminal intent, is enough to constitute solicitation. Some require that the other person actually receive the request. 

Most crimes can be paired with solicitation, such that a ringleader for a gang of thieves can be charged with soliciting the burglary without having to participate in the actual burglary.

Under Ohio law, the crime of solicitation is in the complicity statute. The law states that "No person, acting with the kind of culpability required for the commission of an offense, shall solicit or procure another to commit the offense."

Criminal penalties for a soliciting conviction are at the same degree as the underlying crime. In Ohio, you could solicit someone to commit a misdemeanor or felony crime. The underlying crime must have occurred, whether or not the principal offender faced charges or not.

Subsequent Crime Does Not Need To Be Committed

Under federal law and the law of many states, the subsequent or underlying crime need not be committed. Someone can still be guilty even if their request is not accepted, or the subsequent crime simply never happens. For example, if an undercover police officer receives a request to be a hit man for a murder, the alleged client can be convicted for soliciting even though the murder did not actually take place.

In states like Ohio that look for the commission of the underlying crime, prosecutors may charge criminal attempt in cases where an offender took preparatory steps but never completed the underlying crime.

Solicitation of Sex Crimes

Most states provide specific laws that prohibit soliciting prostitution and other sex crimes. For example, California Penal Code Section 647(b) addresses solicitation for sex and prostitution charges under the Disorderly Conduct statute. In California, it is a misdemeanor crime to solicit, engage in, or agree to engage in any act of prostitution with the intent to receive compensation, money, or anything of value from another person.

California law defines an act of prostitution as any lewd act between persons for money or other compensation. A lewd act occurs where the genitals, buttocks, or female breast, of either the prostitute or the customer come into contact with some body part of the other. The purpose must be for sexual arousal or gratification of either the prostitute or the customer. Thus, a lewd act may involve sexual activity other than sexual intercourse.

California provides that punishment for a first offense of soliciting prostitution can include up to 6 months in jail time, a $1,000 fine, or both. If a defendant's offense involves knowing solicitation of a minor for prostitution, the penalties will increase to up to 1 year in jail, a $10,000 fine, or both.

In California and other states, mandatory sex offender registration will not apply for most instances of soliciting prostitution. In contrast, pimping and pandering crimes, which are felonies, will likely result in the duty to register as a sex offender.

Defenses to Solicitation Charges

As in all criminal cases, a solicitation defendant can invoke any number of defense strategies to either avoid conviction or lessen the degree of the offense or punishment. Possible defenses may include:

• Lack of Intent: Here the defendant challenges the State's proof of criminal intent. For example, someone charged with solicitation of prostitution might argue that they were not serious, did so on a dare from others, or claim they made no offer of compensation for a sex act. Many states, such as California, demand that the State show the defendant took some action in furtherance of the act of prostitution beyond a conversation. (see California Penal Code Section 647(b)(4).)
• Lack of Evidence: The defense attorney may argue that the State has failed to prove one or more elements of the crime beyond a reasonable doubt. In cases built upon circumstantial evidence where no witness can provide a statement the defendant made requesting or encouraging the crime, the State's case may fall short. Association with bad actors and motive alone will not provide clear evidence of solicitation of a crime.
• Entrapment: This legal defense relies on the conduct of a government actor, such as an undercover police officer or government informant. The defendant claims they were not predisposed to commit the crime and that the government actor suggested the crime to them before inducing or encouraging them to commit the crime. Such a defense may be raised in cases involving government sting operations. The predisposition evidence might be a challenge for a defendant who has a prior criminal record related to the offense in question.
• Renunciation: In this situation, the defendant claims that they renounced their request that another commit a crime and took steps to prevent the underlying crime from happening. This is an affirmative defense. The defendant must show by a preponderance of the evidence that they made a voluntary and complete renunciation of criminal intent. Under federal law, the defendant must also show that they prevented the commission of the crime.

Punishment for Solicitation Crimes

Since one can solicit the commission of a variety of crimes, punishment for solicitation can vary widely. Solicitation charges for major crimes will escalate depending on what degree felony lines up with the solicited crime. For example, solicitation of murder is punished as a much higher degree of felony than solicitation of prostitution.

Some states may provide additional penalties for solicitation of prostitution when the offender has a prior conviction. In many states, including Pennsylvania, punishment for solicitation of prostitution will increase on a second or later offense as well. (See 18 Pa. C.S.A. Section 5902.)

In Texas, a first offense is a state jail felony, subjecting someone to anywhere from 6 months to 2 years in state jail, a $10,000 fine, or both. A second offense will rise to a third-degree felony. If the person the defendant solicits for sex is a minor, then the crime will be a second-degree felony. Texas also will increase the degree of the offense by one level if the solicitation occurs within 1,000 feet of a school or school function. (See Texas Penal Code section 43.021.)

Facing Criminal Charges of Solicitation? Get Legal Help

Conviction for the crime of solicitation can have huge consequences. If law enforcement suspects that you solicited a crime, you should consider getting legal advice right away. Solicitation of a sex crime may also subject someone to registration as a sex offender. State and federal law in this area may vary. An experienced criminal defense attorney can help you review the evidence and establish the strongest defense possible.