Article 82 of the Uniform Code of Military Justice punishes solicitation, the act of advising, counseling, commanding, or otherwise seeking to induce another person to commit an offense. A recurring question is what happens when the thing the accused asked someone to do turns out to have been impossible to accomplish, for example because the intended victim was already beyond reach, the contraband never existed, or the person solicited had no real ability to carry out the request. The short answer is that impossibility of completing the solicited act generally does not bar an Article 82 charge, because the crime is the asking, not the doing. The longer answer requires distinguishing two very different ideas that both travel under the word “impossibility.”
What Article 82 actually punishes
Article 82, codified at 10 U.S.C. section 882, makes it an offense for any person subject to the Code to solicit or advise another to commit an offense under the Code. The gravamen of the offense is the solicitation itself. The crime is complete the moment the accused makes the solicitation with the requisite criminal intent, that is, with the intent that the offense solicited actually be committed.
Two consequences follow directly from this structure. First, it does not matter whether the person solicited agreed to act, refused, or did nothing at all. The offense does not require that the solicited crime ever be attempted, much less completed. Second, the offense does not depend on the solicited person’s capacity or willingness to carry it out. An accused who earnestly tries to procure a crime has committed solicitation even if the listener was never going to comply. This is why solicitation is often described as an inchoate offense: it criminalizes a step toward harm before the harm occurs.
Factual impossibility is not a defense
Factual impossibility refers to a situation where the accused intended to bring about a real crime, but some fact unknown to the accused made completion impossible. Classic examples include soliciting the killing of a person who, unbeknownst to the accused, was already dead, or soliciting the theft of property that was not where the accused believed it to be. In these situations the accused’s intent and conduct are exactly what the law condemns; only an extraneous circumstance stood in the way.
Because Article 82 punishes the solicitation rather than its success, factual impossibility does not provide a defense. The accused who seriously and intentionally seeks to induce a crime has done everything the statute requires, regardless of whether the crime could ever have been completed. The same logic applies to the related inchoate offenses of attempt under Article 80, where factual impossibility is likewise not a defense, and conspiracy under Article 81. The unifying principle is that the law targets the dangerousness of the actor’s intent and conduct, which is not diminished by a fortuity that prevented completion.
Legal impossibility can be a defense
Legal impossibility is a different concept and can defeat the charge. Legal impossibility exists when the act the accused solicited would not be a crime even if fully carried out. If what was asked for is simply not an offense under the UCMJ or other applicable law, there is no underlying offense to solicit, and Article 82 has no foundation. The distinction matters because Article 82 is parasitic on a real, chargeable offense: the prosecution must identify the specific offense the accused solicited and prove the accused intended that offense to be committed.
In practice, the line between factual and legal impossibility can be subtle, and courts scrutinize how the conduct is characterized. The key question is whether the accused intended conduct that the law actually forbids. If yes, the fact that completion was impossible because of the surrounding circumstances is no defense. If the accused intended conduct that is not unlawful, there is no crime to solicit.
What the prosecution must still prove
The impossibility analysis does not relieve the government of its burden. To convict under Article 82, the prosecution must prove 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 be committed. The intent element is significant. Idle talk, a bad joke, or words spoken without any genuine purpose that the offense occur do not satisfy the statute. Where impossibility is in the picture, the defense will often focus not on the impossibility itself but on whether the accused truly intended the solicited crime or instead spoke without serious purpose.
Bottom line
Solicitation of an act that later proves impossible to complete can still be charged under Article 82, because the offense is the solicitation made with criminal intent, not the achievement of the solicited result. Factual impossibility, meaning some hidden circumstance that prevented completion, is not a defense. The narrow exception is legal impossibility, where the conduct solicited would not have been a crime at all, in which case there is no underlying offense to support the charge. As always, the government must prove that the accused actually solicited a specific UCMJ offense and intended that it be carried out.
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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