Solicitation offenses in the military arise when one person advises, counsels, or urges another to commit an offense with the intent that the offense be committed. The Uniform Code of Military Justice (UCMJ) addresses solicitation in two places. Article 82 covers solicitation of four specific serious offenses: desertion, mutiny, misbehavior before the enemy, and sedition. Solicitation of other offenses is charged under Article 134, the general article. A distinctive complication appears when the person doing the soliciting holds command or supervisory authority over the person solicited, because the relationship of superior to subordinate introduces the possibility of coercion. This article explains how coercion is evaluated in that setting and why command authority changes the analysis.
Two roles command authority can play
Command authority can matter in a solicitation case from two opposite directions, and it is important to keep them separate.
First, command authority can be part of the government’s theory against the superior who did the soliciting. When a superior uses the weight of rank and the power to reward or punish to press a subordinate to commit an offense, the abuse of that authority can aggravate the conduct and bear on how the case is charged and punished. The superior’s position does not excuse the solicitation; if anything, leveraging command power to induce a crime can make the conduct more serious.
Second, command authority can be central to the defense of the subordinate who was solicited and who then acted. A subordinate who carries out an offense because a superior coerced them may raise coercion or duress as a defense to their own culpability. Here the question is whether the subordinate’s will was overborne to the point that the law should not hold them fully responsible. These are different inquiries, and a single set of facts can implicate both.
What the solicitation offense itself requires
Before reaching coercion, it helps to understand what solicitation requires, because the offense is complete early. Solicitation is a specific intent offense. The government must prove that the accused solicited or advised a particular person to commit a particular offense and did so with the intent that the offense be committed. Under Article 82, the solicitation must also be made under circumstances reasonably tending to induce the commission of the enumerated offense. Critically, the offense is complete when the solicitation is communicated with the required intent, regardless of whether the person solicited agrees, attempts, or carries out the crime. This means a superior can be liable for solicitation even if the subordinate refuses and even if no underlying offense ever occurs.
Evaluating coercion as a defense for the person solicited
When the person solicited acts on the request and is then prosecuted, coercion or duress is evaluated by asking whether that person faced a wrongful and immediate threat that overbore their free will, leaving no reasonable opportunity to avoid the act. In the command context, the analysis is sensitive to the reality of rank. A lawful order from a superior carries the force of military discipline, and a subordinate is generally expected to obey lawful orders. But an order to commit an offense is not a lawful order, and the duty to obey does not extend to clearly unlawful directives. The evaluation therefore distinguishes between the ordinary pressure of the chain of command, which by itself does not excuse criminal conduct, and genuine coercion in which the subordinate had no reasonable choice. Factors that inform this assessment include the nature and immediacy of any threat, the disparity in authority, whether the subordinate had any realistic avenue to refuse or report, and whether the directive was so plainly unlawful that a reasonable subordinate would have recognized it as such.
Unlawful command influence is a separate concept
It is important not to confuse coercion in the solicitation context with unlawful command influence. Article 37 of the UCMJ prohibits persons subject to the code from using their authority to coerce or improperly influence the actions of a court-martial or its participants. Unlawful command influence concerns interference with the justice process itself, such as pressuring witnesses, members, or counsel. While both concepts involve the misuse of command power, unlawful command influence is a doctrine about protecting the integrity of military justice proceedings, whereas coercion in a solicitation case concerns whether a subordinate’s conduct was the product of an overborne will. A case can raise one, the other, or both, and conflating them leads to error.
How command authority shapes the evidence
Because the relationship of authority is central, evidence about that relationship tends to dominate these cases. The factfinder looks at how the solicitation was communicated, the words used, the setting, the existence of any express or implied threat, and the practical consequences the subordinate faced for refusing. Testimony from the parties and from others who observed the relationship can establish whether the superior leveraged rank to induce the offense and whether the subordinate had a genuine ability to decline. Where the superior is the accused, this evidence supports the solicitation charge and any aggravation; where the subordinate is the accused, the same evidence supports or undermines a coercion or duress defense.
Practical takeaways
Several points emerge for anyone facing a solicitation matter that involves command authority. The solicitation offense is complete when the request is made with intent, so a superior cannot escape liability merely because the subordinate refused or the offense never happened. A subordinate who acted under pressure may have a coercion or duress defense, but ordinary chain-of-command pressure alone usually will not excuse a clearly unlawful act, and the strength of the defense depends heavily on the specific threats and the absence of any reasonable alternative. Coercion in this sense is distinct from unlawful command influence under Article 37, which targets interference with the justice process rather than the underlying conduct. Because these cases turn on subtle facts about authority, intent, and free will, both a superior accused of soliciting and a subordinate raising coercion should seek experienced military defense counsel to develop the record and frame the correct legal theory.
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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