Soliciting another person to commit a crime is itself an offense under military law, and a recurring question is whether the government must show some further step beyond the asking. In other words, does the solicitation have to be accompanied by an overt act, or by the solicited person actually doing something, before it can be prosecuted? Under the Uniform Code of Military Justice (UCMJ), the answer is no. Solicitation is complete when the request, encouragement, or advice is communicated with the required intent. No overt act, no agreement by the person solicited, and no commission of the underlying offense is required.
The governing article
Solicitation is punished under Article 82, UCMJ, codified at 10 U.S.C. section 882. The article was amended generally by Public Law 114-328, and that amendment took effect on January 1, 2019. Before the amendment, Article 82 reached only solicitation of four specific offenses: desertion, mutiny, misbehavior before the enemy, and sedition. The amended statute is far broader. It now reaches a person subject to the Code who solicits or advises another to commit any offense under the chapter, while continuing to carry enhanced treatment for the most serious solicited offenses such as desertion, mutiny, misbehavior before the enemy, and sedition. The expansion matters because solicitation prosecutions are no longer confined to those four crimes.
The elements, and what is absent from them
To convict under Article 82, the government must prove that the accused solicited or advised a certain person or persons to commit an offense under the Code, and that the accused did so with the intent that the offense actually be committed. The act is the communication that urges, encourages, requests, advises, or otherwise seeks to induce another to commit the offense. The mental state is the specific intent that the solicited offense actually be carried out.
What is striking is what these elements do not include. There is no element requiring an overt act in furtherance of the scheme. There is no element requiring that the person solicited agree to do anything. And there is no element requiring that the solicited offense ever be attempted or committed. The crime is complete at the moment the solicitation is communicated with the intent that the offense be committed. If the solicited offense is later attempted or completed as a proximate result of the solicitation, that fact can increase the available punishment, but it is not necessary to establish guilt of solicitation in the first place.
Why solicitation differs from conspiracy and attempt
The overt-act question usually arises because two neighboring inchoate offenses do require something more. Conspiracy under Article 81 requires both an agreement between two or more persons to commit an offense and an overt act by at least one of them to effect the object of the agreement. Attempt under Article 80 requires a specific intent to commit the offense plus an overt act that amounts to more than mere preparation and tends to effect the commission of the intended offense.
Solicitation occupies an earlier point on the spectrum of criminal conduct. It punishes the dangerous act of trying to set a crime in motion through another person, and the harm the article targets is the inducement itself, not any later step. That is why no overt act and no agreement are required. A person who asks or urges another to commit an offense, intending that it be done, has completed the solicitation even if the listener refuses, ignores the request, or never lifts a finger. This also distinguishes solicitation from conspiracy, where the agreement and an overt act are both essential, and from attempt, where the accused must take a substantial step toward the crime personally.
What the government must actually prove
Because the conduct element is satisfied by communication, contested solicitation cases tend to turn on two things: whether a solicitation in fact occurred, and the intent behind it. The communication need not be formal or explicit. It can be spoken, written, or made through any medium, and it can be express or implied from words and conduct, so long as it conveys a request or encouragement to commit the offense. Intent that the offense actually be committed is the element most often disputed. Statements made in jest, sarcasm, frustration, or idle talk may fail to show the specific intent that the crime be carried out, and the defense frequently focuses on context to argue that the words were not a genuine attempt to induce the offense.
Practical consequences
The absence of an overt-act requirement has real consequences for both sides. For the government, it means a charge can be sustained on the communication alone, without waiting for the solicited person to act and without proving any further step. For the defense, it means the battleground is the existence and meaning of the communication and, above all, the accused’s intent. Because there is no overt act to scrutinize, the analysis concentrates on what was said, how it was said, and whether the accused truly intended that the solicited offense be committed.
Bottom line
Military law does not require an overt act to accompany a solicitation. Under Article 82, UCMJ, as amended effective January 1, 2019, solicitation now reaches any offense under the Code, and it is complete the instant the accused communicates a request, encouragement, or advice with the specific intent that the offense be committed. Neither agreement by the person solicited nor any further act is necessary. This sets solicitation apart from conspiracy and attempt, which do require an agreement and overt act or a substantial step respectively, and it focuses the typical Article 82 case squarely on the communication and the accused’s intent.
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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