What Is Solicitation?

Definition of Solicitation

motorist talking to prostitute in street at night
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Solicitation is the offering of compensation for goods or services that are prohibited by law. Solicitation can be requesting, encouraging or demanding that someone else commit a crime, with the intent to contribute to the commission of that crime.

For a solicitation to take place, the person requesting the criminal activity must have the intent that the crime be committed or the intent to engage in the criminal activity with that person.

The most common form of the crime is the solicitation of prostitution - offering money to someone to have sex. But solicitation can be committed for any crime, such as murder or arson.

The actual crime does not have to take place for someone to be charged with solicitation. As long as the request was made and compensation offered, the crime of solicitation has taken place, whether or not the person follows through on the criminal behavior.

For example, if a person requests money in exchange for sex, the person receiving the request does not have to agree or follow through with the request for the person making the request to be guilty of solicitation as long as the intent to follow through with the request exists. If the request is acted on, then it becomes a criminal conspiracy.

Also, criminal solicitation can be charged regardless of if the person approached by the solicitor understands what the crime is that is being requested.

For example, if an adult approached a child and offered money in exchange for a sexual act, it is not necessary for the child to understand what the act is for the person requesting it to be charged with solicitation if intent is shown.

Disproving Criminal Solicitation

Many states have specific statutes regarding criminal solicitation, including what kind of defense can be used at trial.

To prove someone is not guilty of solicitation the defense will try to prove one or more of the following:

  • Entrapment.
  • There was no intent to commit the crime. 
  • The request was never made.
  • The person solicited lacks credibility.

Penalties for Criminal Solicitation

There is a misconception that the penalties for criminal solicitation are less harsh when compared to punishments issued when an actual crime has occurred. However, the punishment for criminal solicitation can be equal to the punishment for the actual crime, and when it is not, it is often only a minor downgrade. 

Actual Case: 

Brett Nash, 46, from Granite City, Illinois was sentenced in federal court to the maximum statutory sentence of 20 years in prison after pleading guilty to the crime of solicitation of a crime of violence on December 4, 2012.

At the sentencing hearing, Nash argued that he did not have the intent to murder. In response, the prosecution played several recorded conversations between Nash and his wife and between Nash and the confidential witness, leading the judge to conclude that the intention to murder the victim was clear.

The recordings were of Nash telling his wife to lure the victim, a Granite City lawyer, from his home, whereupon Nash and the witness would kidnap the victim and take him back to his house, rig him with a fake explosive device and then take him to his bank and force him to withdraw all his money under the threat that Nash would detonate the explosive.

The recordings also indicated that Nash's initial plan was to electrocute the victim by putting him in a hot tub and electrocuting him by throwing a radio in the hot tub. He would then throw in a cat and electrocute the cat to make it look like the cat had accidentally knocked the radio into the hot tub.

However, one of the recordings indicated that on the day Nash was arrested, he told the witness that he wanted two guns for the robbery because the victim was going "to commit suicide," implying that he and the witness would shoot the victim and make it look like a suicide. "Dead men don't talk," said Nash in one of the recordings.

Solicitation and Double Jeopardy

A person cannot be convicted of criminal solicitation and of the completed crime that they solicited. When the offense of criminal solicitation is the lesser offense, it is included with the more serious offense.

If for example, a person is on trial for kidnapping, that person cannot be put on trial later for soliciting a person to commit the same kidnapping. To do so would be considered trying the person twice for the same crime (double jeopardy) which goes against the Fifth Amendment.