Conspiracy and solicitation are both inchoate offenses, meaning they punish steps toward a crime rather than the completed crime itself. Under the Uniform Code of Military Justice, conspiracy falls under Article 81 and solicitation falls under Article 82. Although the two can overlap in everyday language, they are legally distinct. The clearest differences lie in whether an agreement is required, whether an overt act is required, and at what moment the offense becomes complete. This article walks through those distinctions.
Conspiracy under Article 81
Article 81, codified at 10 U.S.C. 881, makes it an offense to conspire to commit an offense under the code. Conspiracy has two essential elements. First, the accused entered into an agreement with one or more persons to commit an offense under the code. Second, while the agreement continued to exist and while the accused remained a party to it, the accused or at least one co-conspirator performed an overt act for the purpose of bringing about the object of the conspiracy.
Two features stand out. Conspiracy requires an agreement, and it requires an overt act. The agreement need not take any particular form. No specific words or actions are necessary, only a common understanding to accomplish the object of the conspiracy. The overt act is separate from the agreement. It is any action that advances the conspiracy toward its criminal objective. The overt act need not itself be illegal, but it must manifest the conspiracy and move it from planning toward execution. Conspiracy also requires the mental commitment to join the agreement with the intent that the underlying offense be carried out.
Solicitation under Article 82
Article 82, codified at 10 U.S.C. 882, addresses soliciting the commission of offenses. Solicitation occurs when the accused intentionally encourages, advises, or counsels another to commit an offense. The defining feature is that solicitation requires specific intent. The accused must intentionally solicit another person and intend that the solicited offense be committed.
What solicitation does not require is just as important. Solicitation does not require an agreement, and it does not require the solicited person to act. It is, in effect, an instantaneous offense. The crime is complete the moment the accused communicates the solicitation with the necessary intent, regardless of whether the other person agrees, attempts the crime, or commits it. Most UCMJ offenses require an overt act to be complete, but solicitation does not. The communication itself, made with the intent that the offense be committed, is the offense. Article 82 also addresses solicitation of particularly serious conduct such as desertion, mutiny, sedition, or misbehavior before the enemy, with punishment provisions that can vary depending on whether the solicited offense was attempted or committed.
The core distinctions side by side
Three distinctions capture the difference. First, agreement. Conspiracy requires a meeting of the minds, a common understanding between two or more persons. Solicitation can exist with no agreement at all, because the solicited person need not accept or join. Second, overt act. Conspiracy requires that an overt act be performed in furtherance of the agreement. Solicitation requires no overt act beyond the solicitation itself. Third, completion. A conspiracy is complete only once both the agreement and an overt act exist. A solicitation is complete the instant the solicitation is communicated with the required intent.
A simple way to see the difference is to consider what happens when nothing further occurs. If a service member tries to persuade another to commit a crime and the other refuses outright, there is no agreement and therefore no conspiracy, but the solicitation may already be complete because the request was made with the intent that the crime be committed. If instead the two reach an understanding to commit the crime and one of them then takes a concrete step toward it, a conspiracy exists even though the crime itself was never carried out.
Why the distinction matters
The distinctions are not academic. Because solicitation is complete upon communication, it can be charged even when the plan goes nowhere and no one agrees. Because conspiracy requires both an agreement and an overt act, the defense in a conspiracy case can attack either element, arguing that no genuine agreement existed or that no qualifying overt act was performed. The two offenses also rest on different proof of relationships. Conspiracy is inherently a group offense built on the agreement between participants, while solicitation focuses on the accused’s own act of urging another, whether or not that other ever responds.
Both offenses share a demanding mental element. Conspiracy requires the intent that the underlying offense be carried out, and solicitation requires the intent that the solicited offense be committed. In each, the accused must genuinely aim at the commission of the target crime.
Bottom line
Conspiracy under Article 81 turns on an agreement plus an overt act in furtherance of that agreement. Solicitation under Article 82 turns on an intentional communication urging another to commit an offense and is complete the moment that communication is made, with no agreement or overt act required. A service member facing either charge should consult a qualified military defense attorney, because the elements and defenses differ significantly. This article provides general information and is not legal advice for a specific 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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