Solicitation and the crime that follows it are two distinct wrongs. One is the act of asking or advising another to commit an offense. The other is the offense itself. A recurring question in military practice is whether the government can charge solicitation when the underlying offense was actually committed but there is no proof tying that completed crime to a request from the accused. The short answer is that solicitation stands or falls on proof of the solicitation, not on proof of the completed offense, so a missing link between the two is fatal to the solicitation charge.
Solicitation is a separate offense from the crime solicited
Under Article 82 of the Uniform Code of Military Justice, solicitation punishes the act of soliciting or advising another person to commit an offense under the Code. The elements focus on the accused’s conduct and state of mind: that the accused solicited or advised a particular person to commit a particular offense, and that the accused did so with the specific intent that the offense be committed. The offense is complete the moment that communication is made with the required intent. It does not require that the person solicited agree, attempt, or succeed.
This means solicitation can be charged whether or not the underlying offense ever occurs. If the solicited crime is never committed, the solicitation is still punishable. If the crime is committed, the solicitation remains a separate charge, and Article 82 even allows enhanced punishment in certain cases when the solicited offense is attempted or committed as a result of the solicitation. The two charges address different conduct and can coexist.
The pivotal element is proof of the request itself
Because solicitation punishes the act of soliciting, the government must prove that act. The fact that the underlying offense happened does not establish that the accused requested it. A crime can be committed for countless reasons that have nothing to do with the accused. Without evidence that the accused communicated a request or advice to commit that offense, accompanied by the intent that it be carried out, the central element of solicitation is missing.
So the premise in the question matters enormously. If the underlying offense was committed but there is no proof of the request, then a solicitation charge cannot be sustained on the strength of the completed crime alone. The completed offense is not a substitute for proof of the solicitation. The government would have to prove the solicitation independently through witness testimony, messages, recordings, or other evidence showing that the accused actually asked or advised another to commit the offense.
Why the completed crime cannot fill the evidentiary gap
It might seem logical to infer a request from the fact that the crime occurred, especially if the accused benefited. But inference of that kind is dangerous and legally insufficient on its own. Solicitation requires specific intent, and that mental state must be proven, not assumed from outcomes. Negligence or mere association is not enough. Allowing the completed offense to stand in for proof of solicitation would punish the accused for someone else’s act without establishing the accused’s own criminal communication.
For the same reason, charging solicitation in addition to the completed offense does not relieve the government of its burden on each. If the prosecution wants to add a solicitation charge alongside a charge for the substantive crime, it must marshal evidence of the request for the solicitation count and evidence of the offense for the substantive count. A weakness on one does not borrow strength from the other.
What this means for how charges are added
Charges in a court-martial are drafted as separate specifications, and the government may add a solicitation specification to a charge sheet so long as it can prove the elements of that specification. Adding the charge is procedurally possible. Sustaining it is a different matter. A solicitation specification that rests only on the occurrence of the underlying offense, with no proof of the accused’s request, should not survive a challenge to the sufficiency of the evidence.
This is also why defense counsel scrutinize whether each specification is supported by its own proof. If the government has stacked a solicitation charge on top of a substantive charge but cannot point to evidence of an actual request, counsel can move to dismiss the solicitation count or argue for acquittal on it, even if the substantive offense is well supported.
Practical takeaways
To answer the question directly: solicitation can be charged in addition to a completed underlying offense, because the two are distinct crimes. But it cannot be sustained without proof of the solicitation itself. The completion of the underlying offense does not, by itself, prove that the accused requested or advised it. The government must independently establish that the accused communicated a request to commit the offense with the intent that it be carried out.
A servicemember facing a solicitation charge layered on top of another offense should focus closely on whether the prosecution actually has evidence of the request. Because these cases hinge on specific intent and the precise words used, anyone in this position should consult experienced military defense counsel to test the sufficiency of the solicitation specification.
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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