Solicitation charges under the UCMJ punish a service member for encouraging, advising, requesting, or otherwise enticing another person to commit an offense. Article 82 of the UCMJ addresses soliciting the commission of offenses, including soliciting another to commit an offense under the code generally and, in its more serious form, soliciting desertion, mutiny, sedition, or misbehavior before the enemy. A recurring and difficult scenario arises when the accused genuinely believed that the act they were urging was lawful. In that situation, the defense must grapple with a core principle of criminal law: ignorance of the law is usually no excuse. Yet the picture is more nuanced than that maxim suggests, and several defenses may be available depending on exactly what the accused believed and why.
Start With the Required Intent
The first and most important defense focuses on the intent element of solicitation itself. Solicitation under Article 82 requires that the accused acted with the intent that the offense actually be committed. The crime is not merely speaking words that resemble encouragement; it is urging another to commit a specific offense while intending that the offense occur. If the accused did not intend that an unlawful act be carried out, a central element of the charge is missing.
This matters greatly in the “believed it was lawful” scenario. If the accused genuinely thought the requested conduct was permissible, that belief can be powerful evidence that the accused never intended for an offense to be committed, because in the accused’s mind there was no offense to commit. Many solicitation accusations arise from sarcastic remarks, emotional venting, frustration expressed in a group chat, or ambiguous statements made amid stress, conflict, or alcohol. In such cases, the defense can argue that the words lacked the genuine intent that any unlawful act be performed, defeating the charge regardless of how the statement might be parsed in hindsight.
Mistake of Fact
When the accused’s belief concerns the facts rather than the legal label, a distinct and recognized defense becomes available. Mistake of fact is a defense under Rule for Courts-Martial 916(j). It applies when the accused, because of ignorance or a mistaken belief about the true circumstances, held a view of the facts that, if accurate, would mean no offense was committed. The standard depends on the offense. Where the charge requires a specific intent, knowledge, or willfulness, an honest mistake of fact can suffice even if it was not objectively reasonable. Where the charge requires only general intent, the mistaken belief must be both honest and reasonable.
Because solicitation requires the specific intent that an offense be committed, a mistake of fact that negates that intent can be a complete defense. If the accused mistakenly believed a fact that, were it true, would make the solicited conduct entirely lawful, then the accused did not intend the commission of any offense. Framing the accused’s belief as a mistake about the facts, rather than a misunderstanding of the law, often determines whether the defense succeeds.
Mistake of Law and Its Narrow Exceptions
A belief that conduct was lawful is, by its nature, often a mistake of law, and here the general rule is unfavorable to the accused. Under Rule for Courts-Martial 916(l), ignorance or mistake of law, including ignorance of general orders or regulations, ordinarily is not a defense. A sincere but incorrect belief that an act was legal usually will not excuse soliciting it.
That general rule has narrow exceptions that can be decisive in the right case. One recognized exception arises when the mistaken belief results from reasonable reliance on an official statement of the law, such as a decision or pronouncement by an authorized public official or agency responsible for administering the law in question. If a service member solicited conduct after being told by a properly authorized official that the conduct was lawful, reliance on that official pronouncement may support a defense. By contrast, the rule is clear that reliance on the advice of private counsel that conduct is legal is not, by itself, a defense. The distinction between official, authorized pronouncements and ordinary legal advice is therefore critical to whether this exception can be invoked.
Legal Impossibility
Another avenue depends on whether what was solicited was actually a crime at all. Legal impossibility can provide a defense when the conduct the accused urged would not constitute an offense even if fully carried out. If the accused requested an act that is not in fact prohibited, then no solicitation of an offense occurred, because there was no offense to solicit. This is distinct from factual impossibility, where circumstances merely make completion of an otherwise criminal act impossible, which generally is not a defense. When an accused believed conduct was lawful and that belief turns out to be correct, the proper framing may be that the solicited act was simply not an offense, defeating the charge on its elements.
Entrapment
Where the idea or impetus for the solicitation originated with the government, entrapment may apply. Entrapment requires showing that government agents induced or created the criminal conduct rather than merely providing an opportunity for a person already disposed to commit it. If an undercover agent or informant pressured or persuaded an accused into soliciting an act the accused would not otherwise have urged, and the accused lacked a predisposition to do so, the defense can argue that the government manufactured the offense. This defense is fact intensive and turns on both the nature of the government’s conduct and the accused’s predisposition.
Putting the Defenses Together
In a solicitation case where the accused believed the conduct was lawful, the strongest defenses usually attack the intent element directly: the accused did not intend the commission of any offense, often because of the very belief that the act was permissible. Where that belief rests on a misunderstanding of facts, mistake of fact under Rule for Courts-Martial 916(j) may negate the required intent. Where the solicited act was not actually unlawful, legal impossibility may apply. A pure mistake of law generally will not excuse the conduct, but the narrow exception for reasonable reliance on an authorized official pronouncement can be powerful when the facts support it. And where the government engineered the solicitation, entrapment may be available. Because these defenses depend on precisely what the accused believed, why, and how the situation arose, a careful reconstruction of the accused’s state of mind and the surrounding circumstances is essential to identifying which defense fits the case.
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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