Solicitation

[F. sollicitation, or L. sollicitatio.]

1. The act of soliciting; earnest request; persistent asking; importunity.

2. Excitement; invitation; as, the solicitation of the senses. Locke.

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Urgent request, plea, or entreaty; enticing, asking. The criminal offense of urging someone to commit an unlawful act.

The term solicitation is used in a variety of legal contexts. A person who asks someone to commit an illegal act has committed the criminal act of solicitation. An employee who agrees in an employment contract not to solicit business after leaving her employer and then mails a letter to customers asking for business may be sued by the former employer for violating the non-solicitation clause of the contract. The letter constitutes a solicitation. However, if the person had placed a newspaper advertisement, this would not have been a solicitation because a solicitation must be addressed to a particular individual.

Many solicitations in everyday life appear to be legal. For example, a telemarketer who tries to sell a legitimate product by calling potential customers is making a solicitation. It may or may not be legal, however, depending on the laws of the states where the telemarketer and the caller reside. If either of the states requires that telemarketers register with the state government, then the legality of the solicitation will depend on whether the telemarketer met this registration requirement. Failure to register may make the telemarketing company liable for civil fines or criminal penalties.

Solicitation laws and regulations govern specific types of organizations and economic activities. For example, charitable organizations must register with state agencies before legally soliciting money. The federal Securities and Exchange Commission has rigid rules concerning the solicitation of shareholders for votes involving changes in corporate structure or leadership.

Criminal solicitation commonly involves crimes such as prostitution and drug dealing, though politicians have been convicted for solicitation of a bribe. The crime of solicitation is completed if one person intentionally entices, advises, incites, orders, or otherwise encourages another to commit a crime. The crime solicited need not actually be committed for solicitation to occur.

When law enforcement agencies seek to curtail prostitution, they use decoy operations. A person who offers to perform a sex act with an undercover officer for money can be arrested for solicitation of prostitution. Police decoys are also used to nab customers. When a person looking to pay for sex approaches a decoy officer and makes, by words or gestures, this request, the person can be arrested for solicitation of prostitution. Similar operations are used to reduce the sale of narcotics.

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Criminal law
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In the United States, solicitation is a crime; it is an inchoate offense that consists of a person inciting, counseling, advising, urging, or commanding another to commit a crime with the specific intent that the person solicited commit the crime. In the other common law countries, the situation is different:

• where the substantive offense is not committed, the charges are drawn from incitement, conspiracy, and attempt;
• where the substantive offense is committed, the charges are drawn from conspiracy, counseling and procuring (see accessories), and the substantive offenses as joint principals (see common purpose).

In England and Wales, the term soliciting alone refers to "loitering or soliciting in a public place for the purpose of prostitution" under the Street Offences Act 1959. For the latest Home Office proposals on this offence, see [1].

Discussion

It is not necessary that the person actually commit the crime, nor is it necessary that the person solicited be willing or able to commit the crime (such as if the "solicitee" were an undercover police officer).

For example, if Alice commands Bob to assault Charlie and Alice intends for Bob to assault Charlie, then Alice is guilty of solicitation. However, if Alice commands Bob to assault Charlie without intending that an actual crime be committed (perhaps believing that Charlie has given consent), then there is no solicitation.

An interesting twist on solicitation occurs when a third party that the solicitor did not intend to receive the incitement overhears the request to the original solicitee and unbeknownst to the solicitor, commits the target offense. In a minority of jurisdictions in the United States, this situation would still be considered solicitation even though the defendant never intended the person that committed the crime to have done so.

Solicitation is also subject to the doctrine of merger, which applies in situations where the person solicited actually commits the crime. In such a situation, both Alice and Bob could be charged with the crime as accomplices, which would preclude conviction under solicitation; a person cannot be punished for both solicitation and the crime solicited.

Note that solicitation can apply to just about any criminal act. There are also many statutes for specific solicitation crimes. For example, solicitation of murder is often considered a capital offense, and has its own statute. Other examples might be solicitation of prostitution, or solicitation of a bribe.

See also

• Criminal law

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