Article 82 of the Uniform Code of Military Justice punishes the act of soliciting or advising another person to commit a military offense. It is an inchoate offense, meaning the crime can be complete the moment the request is made, regardless of whether the person solicited ever agrees or acts. The following thirty-five questions and answers explain how Article 82 works, what the government must prove, how it relates to conspiracy and attempt, and how it is punished. This is general legal education and not legal advice.
1. What does Article 82 cover?
Article 82, codified at 10 U.S.C. section 882, punishes a person subject to the Code who solicits or advises another to commit an offense under the Code. The statute is sometimes titled solicitation and is also described as soliciting commission of offenses.
2. What does it mean to solicit an offense?
To solicit means to seriously request, advise, command, counsel, or otherwise encourage another person to commit an offense. The essence is urging or asking someone else to break the law.
3. Does the person solicited have to agree?
No. Solicitation is complete when the request or advice is communicated with the required intent. Whether the other person agrees, refuses, or does nothing does not undo the offense, although it affects how the offense is punished.
4. What are the elements of solicitation?
In general, the government must prove that the accused solicited or advised another to commit an offense, and that the accused did so with the intent that the offense be committed. Where the statute treats specific serious offenses differently, additional considerations about whether the offense was committed or attempted affect punishment.
5. Is intent required?
Yes. The accused must have intended that the solicited offense actually be committed. A statement made in jest, hypothetically, or without any genuine desire that the crime occur does not meet the intent requirement.
6. Can words alone be enough?
Yes. Solicitation is fundamentally a crime of communication. Spoken words, written messages, or any clear communication urging another to commit an offense can satisfy the conduct element, provided the required intent is present.
7. Which offenses does the statute single out?
The statute gives special treatment to solicitation or advice to commit certain grave offenses, including desertion in violation of Article 85, mutiny, sedition, and misbehavior before the enemy in violation of Article 99. These are treated as especially serious objects of solicitation.
8. Why are those offenses treated differently?
Desertion, mutiny, sedition, and misbehavior before the enemy strike at the core of military order and operational survival. Encouraging others to commit them is so dangerous that the statute ties the punishment to whether the solicited offense was actually committed or attempted.
9. How does punishment work for solicitation of those serious offenses?
When the offense solicited or advised is one of those grave offenses and it is committed, or in the case of desertion or mutiny attempted, the law allows the solicitor to be punished with the punishment provided for commission of that underlying offense. If the solicited offense is neither committed nor attempted as the statute specifies, the solicitor is punished as a court-martial may direct.
10. What is the punishment for soliciting other offenses?
For solicitation of offenses other than those specially named, the accused is punished as a court-martial may direct, within the limits set by the Manual for Courts-Martial for the particular offense solicited. The framework distinguishes the grave named offenses from the broader category of all other offenses.
11. Is solicitation the same as conspiracy?
No. Conspiracy under Article 81 requires an agreement between two or more persons plus an overt act. Solicitation requires no agreement at all; it is complete when the accused urges another to commit an offense, even if that person flatly refuses.
12. Is solicitation the same as attempt?
No. Attempt under Article 80 requires the accused to take a substantial step toward personally committing an offense. Solicitation is about urging someone else to commit the offense, not taking steps to commit it oneself.
13. What if the person solicited actually commits the offense?
If the solicited offense is committed, the solicitation is still its own offense, and for the gravest named offenses the solicitor can face the punishment authorized for the underlying crime. The solicitor may also face liability under other theories depending on his or her role in the completed crime.
14. Can I be charged with solicitation if I was only joking?
Genuine jest is a defense to the intent element, because the offense requires that the accused actually intended the crime to be committed. Whether a statement was a serious solicitation or a joke is a factual question that turns on the words, context, and surrounding circumstances.
15. Does the person solicited have to be a service member?
The statute reaches a person subject to the Code who solicits another. The focus is on the accused’s conduct and intent. The status of the person solicited can matter to which offense is being solicited and how the matter is charged, but the core wrong is the accused’s act of soliciting.
16. Can solicitation be implied rather than explicit?
A solicitation must amount to a genuine request, advice, or encouragement to commit an offense, but it need not use any magic words. Conduct and indirect language can constitute solicitation if, taken in context, they convey the request with the required intent.
17. What if the solicitation is rejected immediately?
Immediate rejection does not erase the offense. Because solicitation is complete upon communication with the required intent, a refusal by the person solicited affects punishment, not guilt for the grave named offenses where commission or attempt matters, but it does not undo the solicitation itself.
18. Is there a defense if the underlying offense was impossible?
Solicitation focuses on the accused’s intent and communication rather than on whether the solicited crime could succeed. The fact that the solicited offense might have been impossible to complete does not necessarily defeat a solicitation charge, because the wrong lies in urging the crime.
19. Can a single statement solicit more than one offense?
Yes. A single communication that urges another to commit multiple offenses could support more than one theory, although rules against unreasonable multiplication of charges constrain how the government may frame the charges.
20. What defenses commonly arise?
Common defenses include lack of intent that the offense be committed, that the statement was not a genuine solicitation, that the words were misunderstood or taken out of context, mistaken identity, and challenges to the credibility of the witness who heard the solicitation. Each defense depends on the facts.
21. How is solicitation proven at trial?
Proof typically rests on the testimony of the person solicited or others who heard the solicitation, along with any written or recorded communications, and evidence of the surrounding circumstances that establishes the accused’s intent. The communication and the intent behind it are the heart of the case.
22. Does the accused have to benefit from the offense?
No. There is no requirement that the accused stand to gain from the solicited offense. The crime is urging another to commit it with the intent that it be committed, regardless of motive or benefit.
23. Can solicitation be charged at any level of court-martial?
Solicitation can be addressed at different levels depending on its seriousness. Less serious instances might be handled at a special court-martial or even through nonjudicial punishment in appropriate cases, while solicitation of grave offenses such as mutiny would be referred to a general court-martial.
24. What is the difference between summary, special, and general courts-martial here?
The three types of court-martial differ in procedure and the punishments they may impose. A summary court-martial handles minor matters, a special court-martial is intermediate, and a general court-martial can impose the most serious sentences. The level chosen reflects the gravity of the alleged solicitation.
25. Can nonjudicial punishment be used for solicitation?
For minor instances, a command may choose nonjudicial punishment under Article 15 rather than a court-martial. Serious solicitations, particularly of the grave named offenses, are far more likely to be referred to trial.
26. How does Article 82 fit with the law of principals?
A person who solicits an offense that is then committed may also be liable as a principal to that offense under the general principles that make those who aid, abet, counsel, or procure an offense punishable as principals. Article 82 provides a distinct solicitation offense that exists even when the offense is never carried out.
27. Does it matter how the solicitation was communicated?
The medium does not matter as long as the communication conveys the solicitation with the required intent. Face-to-face statements, letters, electronic messages, and other forms of communication can all support a charge.
28. Is enthusiasm or persistence required?
No particular degree of enthusiasm or repetition is required. A single serious request or piece of advice urging the offense, made with the intent that it be committed, can suffice.
29. What if the accused later withdrew the solicitation?
Because the offense is generally complete when the solicitation is communicated with intent, a later change of heart does not automatically erase the completed offense, although it may be relevant to sentencing and to whether the underlying offense was ultimately committed. The facts and timing matter.
30. How serious is a solicitation conviction?
It can be very serious. For solicitation of the gravest named offenses that are then committed, the solicitor faces the punishment authorized for the underlying offense, which can include a punitive discharge, substantial confinement, and total forfeitures. Even solicitation of lesser offenses can carry significant consequences.
31. Will a conviction appear on a civilian record?
A conviction by court-martial is a federal conviction and can appear in background checks, with consequences for civilian employment and other opportunities. The collateral effects extend well beyond the military.
32. Does an accused have a right to counsel?
Yes. A service member facing court-martial is entitled to free military defense counsel and may retain civilian counsel as well. Because the elements and defenses of solicitation are technical, early involvement of counsel is important.
33. Can the defense challenge the credibility of the person solicited?
Yes. Because solicitation often rests on the testimony of the person who claims to have been solicited, attacking that witness’s credibility, motive, and reliability is a central defense strategy. Inconsistencies and bias can undermine the prosecution’s case.
34. What should a service member do if accused of solicitation?
A service member accused of solicitation should avoid discussing the matter without counsel, exercise the right to remain silent, and obtain a defense attorney promptly. Statements made before consulting counsel can be used as evidence, so early legal advice is critical.
35. Where does Article 82 fit among the inchoate offenses?
Article 82 sits alongside Article 80, attempt, and Article 81, conspiracy, as one of the UCMJ’s inchoate offenses, those that punish conduct pointing toward a crime even if the crime is never completed. Solicitation captures the act of urging another to offend, conspiracy captures agreeing with another to offend, and attempt captures personally taking a substantial step toward offending. Together they allow the military to intervene before harm occurs.
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.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
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.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.