PART II. 
CRIMINAL SOLICITATION



 



§705-510  Criminal solicitation.  (1)  A
person is guilty of criminal solicitation if, with the intent to promote or
facilitate the commission of a crime, the person commands, encourages, or
requests another person to engage in conduct or cause the result specified by
the definition of an offense or to engage in conduct which would be sufficient
to establish complicity in the specified conduct or result.



(2)  It is immaterial under subsection (1) that
the defendant fails to communicate with the person the defendant solicits if
the defendant's conduct was designed to effect such communication. [L 1972, c
9, pt of §1; gen ch 1993]



 



Cross References



 



  Liability for conduct of another; complicity, see §702-222.



 



COMMENTARY ON §705-510



 



  Criminal solicitation can rationally be viewed a number of
ways.  It can be argued that solicitation is not the proper subject of penal
sanction because the resulting offense or anti- social conduct in such cases is
dependent upon the independent will of another.  Also, the solicitor, by the
solicitor's reluctance to engage in the proscribed conduct or cause the
proscribed result oneself, tends to indicate that the solicitor does not
present a serious danger.  On the other hand, because of the solicitor's
connivance and subtlety and because of the criminal cooperation which the
solicitor might foster, the solicitor may be thought to create special dangers
calling for special sanctions.  The Code adopts the position that the
disposition of the solicitor presents sufficient dangers to warrant
intervention and that the penal liability of the solicitor should not depend
upon the fortuity of whether the person solicited agrees to or engages in the
requested conduct, or adopts or undertakes to cause the requested result.  In
such cases penal liability would be imposed on a conspiracy or complicity
basis.



  The formulation of subsection (1) is intended to accomplish
two purposes.  First, it makes clear that, with respect to the culpability of
the defendant, the defendant must act with the intent to promote or facilitate
the commission of a crime.  Second, the subsection resolves the problem
presented by equivocal solicitations.  Many innocent remarks or innuendoes
could be interpreted as invitations to commit an offense--e.g., sexual and
bribery offenses.  Furthermore, political and social agitation could, in some
instances, be misinterpreted as an invitation to violate laws disapproved by
the agitator.  To avoid these problems, the Code provides that the conduct or
result commanded, encouraged, or requested must be "specified by the
definition of an offense."  Thus, general, equivocal remarks-- such as the
espousal of a political philosophy recognizing the purported necessity of
violence--would not be sufficiently specific vis-a-vis the definition of an
offense to constitute criminal solicitation.



  Subsection (2) makes it immaterial that the defendant's
communication does not reach the person whom the defendant intends to solicit
as long as the defendant's conduct is designed to effect the communication.



In order for
liability to attach under this subsection the last proximate act must be done
to effect communication with the party intended to be solicited.  Conduct
falling short of the last act was excluded because it was considered too remote
from the completed crime to manifest sufficient firmness of purpose by the
actor.  The crucial manifestation of dangerousness here lies in the endeavor to
communicate the incriminating message to another person, it being wholly
fortuitous whether such message was actually received.  Liability should
attach, therefore, even though the message is not received by the contemplated
recipient, and should also attach even though further conduct might be required
on the solicitor's part before the party solicited could proceed to the
crime.[1]



  Criminal solicitation was termed instigation under prior
Hawaii law.[2]  One was guilty of instigation if one "instigates another
to the commission of any offense, by commanding, soliciting or offering to
hire, or otherwise endeavoring to induce him to commit the offense."[3] 
The Code is generally in keeping with this definition.  It is to be noted that,
under prior law, Hawaii was one of the few states which, accepting the tenets
of modern penal theory, recognized that the solicitation of any crime is itself
a crime:  the majority of jurisdictions only regard as criminal the
solicitation of the more serious crimes.[4]  Moreover, Hawaii has long
recognized that, as the Code provides, the actual degree of influence which the
solicitor may effect is immaterial, so long as the solicitor intends to promote
the commission of the crime.[5]



 



__________



§705-510 Commentary:



 



1.  M.P.C., Tentative Draft No. 10, comments at 89 (1960).



 



2.  H.R.S. §702-11.



 



3.  Id.



 



4.  Wechsler, Jones, and Korn, The Treatment of Inchoate Crimes
in the Model Penal Code of The American Law Institute: Attempt, Solicitation,
and Conspiracy, 61 Colum. L. Rev. 571, 623 n.301 (1961).



 



5.  Republic of Hawaii v. Oishi, 9 Haw. 641, 649 (1894).