Ch 5. In-depth Notes on Solicitation, Facilitation, and Attempt in Criminal Law

Chapter Five: Solicitation, Facilitation, and Attempt

Learning Objectives

  • Explain the defenses that may exonerate liability for the crimes of solicitation and attempt
  • Evaluate the actus reus element for the crime of attempt to determine criminal liability as distinct from solicitation
  • Compare and Contrast the mens rea approaches for attempt liability under common law versus the Model Penal Code (MPC)
  • Differentiate the crime of facilitation from other inchoate offenses
  • Explain the crime of solicitation

Inchoate Crimes

  • Definition: Crimes that punish early stages of criminal activity before the crime is completed.
  • Key Elements:
    • Actus Reus: Shows intent to commit a future crime.
    • Mens Rea: The intent to commit a future crime.
  • Complicity Theory: Legal responsibility extends to the criminal acts of another person, holding others accountable for their involvement.

Solicitation

  • Definition: Involves asking, persuading, or enticing another person to commit a crime.
  • Process: Solicitation can lead to conspiracy if two or more individuals agree to commit a crime.
  • Common Law vs. MPC:
    • Common law restricts solicitation to felonies only.
    • MPC extends solicitation to any level of crime.
  • Impossibility: Legal concept surrounding whether an individual can be charged based on the feasibility of the crime being completed.

Facilitation

  • Definition: Providing another individual with the means or opportunity to commit a crime.
  • Mens Rea Requirement: Requires knowledge; the facilitator must be aware that the other person intends to commit a crime.
  • Post-Crime Responsibility: If the crime is committed, most jurisdictions adopting the MPC consider facilitators as complicit in the main crime.

Attempt

  • Definition: Actions taken towards committing a crime that fails.
  • Key Elements of Crime:
    • Actus Reus:
    • Common Law: Utilizes a "proximity test" that examines how close the defendant is to completing the crime.
    • MPC: Follows a "substantial step" test that looks for actions taken that corroborate the intent to commit a crime.
    • Mens Rea:
    • Common law requires specific intent for all elements involved.
    • MPC requires an intent to achieve the result of the actus reus.

Defenses to Solicitation and Attempt

  • Common Law vs. MPC Defenses:
    • Abandonment (Renunciation/Withdrawal):
    • Common Law: Does not recognize this defense.
    • MPC: Requires actions to abandon the crime to be effective, complete, and voluntary. Some jurisdictions require the solicitor to prevent the crime by either advising the person not to commit it or notifying law enforcement.
    • True Legal Impossibility: Behavior is not illegal, and this defense is recognized by the MPC but not by common law.
    • Factual Impossibility: The crime cannot be committed because of external circumstances; this is not recognized as a defense under either common law or the MPC.