Common Law Solicitation

Solicitation is a general intent crime under the Common Law; however, it was typically treated as though it was a specific intent crime because solicitation is an incomplete crime like attempt. The defendant only needed to have a general intent that his conduct/solicitation will lead to the result of the crime; however, the defendant needed to “have the purpose” or specific intent that the third party will commit the crime.

Under common law, whenever the defendant completed the actus of asking a third party to commit a crime, the solicitation was complete. The law required that the state must show the defendant encouraged or induced through the statement (i.e. the defendant offers the third party tangible property if the third party commits a crime). In order to be found guilty, the defendant’s statement would have to indicate a clear mens rea that the third party commit the crime. Common law only looked at the statement by the defendant and not any actions surrounding the statement. No overt act required under Common Law or MPC. The statement was evaluated under an objective reasonableness standard.

Modern Solicitation

Modern statutes define solicitation as a specific intent crime.  For example, MPC Section 5.02 defines solicitation as:

“A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission [specific intent] he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.”

If the defendant wants to end or renunciate the solicitation he must persuade the third party not to do the crime or otherwise prevent the commission of the crime. In order to renunciate from the solicitation, the defendant must manifest a “complete and voluntary renunciation of his criminal purpose” (Section 5.02(3)). Renunciation is presented by the defendant as an affirmative defense.


Helpful: General Intent Crimes List

General Intent vs. Specific Intent

Intent crime

The difference between general intent and specific intent:

  • General intent – the defendant intended the conduct
  • Specific intent – the defendant intended the conduct and the result

For a specific intent crime, the mens rea will typically be written into the statute. Intentional and knowledge based crimes are considered specific intent crimes. Here is a (not exhaustive) list of specific intent crimes:

  1. Murder
  2. Attempt
  3. Conspiracy
  4. Solicitation (under modern statutes)
  5. Larceny
  6. False Imprisonment

Note: A specific intent crime cannot merge.

General intent crimes typically include crimes that are based on the defendant being reckless or negligence. Here is a (non exhaustive) list of general intent crimes:

  1. Manslaughter
  2. Negligent Homicide
  3. Solicitation (however, it is treated like a specific intent crime and modern statutes define it as a specific intent crime)
  4. Arson
  5. Rape


Mistake of Law Defense

Mistake of Law is not a valid defense to a general intent crime. Even if the defendant’s mistake was reasonable, mistake of law is not a valid defense. (See People v. Marrero). The only exception is if a statute proscribing the defendant’s conduct has not been reasonably made available or if the defendant recently relied on a statute or judicial decision that was recently held unconstitutional.

However, under a specific intent crime, the defendant’s mistake of law is a valid defense whether reasonable or unreasonable. (See Cheek v. United States).

Compare to Mistake of Fact Defense

More Helpful Information: List of General Intent and Specific Intent Crimes

People v. Marrero, 69 N.Y. 2d 382

Case Name: People v. Marrero
Citation: 69 N.Y. 2d 382

Facts: Marrero, a federal corrections officer, was arrested for unlicensed possession of a loaded handgun. The statute exempted “peace officers” which included “corrections officers of any state correctional facility or of any penal correctional institution.” After a successful pretrial motion to dismiss, the Appellate Division reinstated the indictment, holding that Marrero was not a “peace officer.” Marrero was then tried and convicted before a jury after the trial court rejected his request for a jury instruction that it would be a good defense if he reasonably believed that the statutory exemption for peace officers applied to him as a federal correctional officer.

Issue: Whether the defendant’s personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.

Defendant’s argument:  The jury should have received an instruction about his reasonable belief that the statutory exemption applied to him was a good defense.

State’s argument: The common law has clearly established that “mistake of law” does not relieve a defendant of criminal liability.

Holding: Conviction upheld.

Reasoning: In addition to the common law view, if Marrero’s argument was accepted, “the exception would swallow the rule. Mistakes about the law would be encouraged…there would be an infinite number of mistake of law defenses.” The crime only required general intent.

Dissent: The majority adopts an Utilitarian view. The criminal justice system is supposed to punish blameworthiness or “choosing freely to do wrong.” The defendant acted innocently and with any intent to do wrong and should not be punished. Furthermore, the dissent disagreed with the majority’s construction of the penal statute.