Yes. Under the Uniform Code of Military Justice, a failed effort to convince another person to commit an offense is still prosecutable as solicitation. Solicitation under Article 82 is what the law calls an inchoate offense, meaning it punishes the urging itself rather than any result. The crime is complete the moment the solicitation is communicated with the required intent. Whether the person solicited refuses, agrees and then backs out, never acts, or reports the request to authorities makes no difference to whether the solicitation occurred. This is one of the defining features of Article 82, and it surprises many service members who assume that nothing happened because the plan went nowhere.
Solicitation is complete on communication
Article 82 covers any person subject to the code who solicits or advises another to commit an offense under the code. The elements are that the accused solicited or advised a particular person or persons to commit a specific offense, and that the accused did so with the intent that the offense actually be committed. There is no element requiring that the solicited offense be carried out, attempted, or even agreed to.
Because of that structure, the offense is finished as soon as the request is communicated to the person being solicited, provided the accused intended the offense to take place. A service member who tries to talk a fellow member into stealing property, falsifying a record, or assaulting someone has completed the solicitation even if the listener immediately says no. The failure of the scheme does not erase the criminal act of soliciting it.
Why failure is not a defense
The reason failure does not matter is that the harm Article 82 targets is the attempt to set criminal conduct in motion. The law treats the act of urging another to break the law as dangerous in itself, because it can lead to real offenses and because it reflects the soliciting person’s own intent to bring about a crime. Once a person has communicated that urging with criminal intent, the danger has been created regardless of how the listener responds.
This also means that the listener’s state of mind is largely beside the point. It does not matter whether the person solicited was offended, played along, was an undercover investigator, or had no intention of cooperating. What matters is what the accused said and what the accused intended. A solicitation made to someone who was never going to comply is still a completed solicitation.
The intent requirement is the real battleground
Because completion is easy for the government to show once the words are proven, the contested issue in most solicitation cases is intent. The prosecution must prove the accused genuinely intended that the offense be committed. Words that are spoken in jest, idle talk, venting, or hypothetical musing do not amount to solicitation, because the speaker did not actually intend the listener to act. The line between a serious request and casual or joking speech is often the heart of the defense.
Context drives this analysis. The specificity of the request, whether the accused offered a plan or inducement, whether the conversation was repeated or pressed, and the relationship between the parties all bear on whether the accused truly intended the crime to happen. A single offhand comment is far weaker proof of intent than a detailed, persistent effort to arrange the offense.
How solicitation differs from attempt and conspiracy
It helps to place solicitation alongside its neighbors. An attempt under Article 80 requires the accused to take a substantial step toward committing the offense personally. Conspiracy under Article 81 requires an agreement between two or more people plus an overt act in furtherance of it. Solicitation under Article 82 requires neither a substantial step nor an agreement. It punishes the one-sided act of urging another to commit the crime. That is exactly why a failed effort still counts: solicitation, unlike conspiracy, does not depend on the other person agreeing, and unlike attempt, does not depend on the offense moving forward.
It is also worth noting how punishment is structured. For most offenses, Article 82 punishes a failed solicitation as a court-martial may direct. For solicitation of certain grave offenses such as desertion, mutiny, misbehavior before the enemy, or sedition, the law distinguishes between solicitations that are carried out or attempted, which can carry the punishment for the underlying offense, and those that are not, which are punished as a court-martial may direct. Either way, the failure of the effort does not defeat the charge; it can affect the available punishment for those specific offenses.
Practical takeaway
A service member should not assume that a refused or ignored request is harmless. Under Article 82, solicitation is complete when the urging is communicated with the intent that the offense be committed, and the listener’s refusal is not a defense. The strongest defenses focus on intent, arguing that the words were not a serious request to commit a crime, and on proof, challenging what was actually said. Because the offense can be established from the communication alone, anyone facing a solicitation allegation should speak with a qualified military defense attorney before discussing the matter further.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
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Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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