§705-511  Immunity, irresponsibility, or
incapacity of a party to criminal solicitation.  (1)  A person shall not be
liable under section 705-510 for criminal solicitation of another if under
sections 702-224(1) and (2) and 702-225(1) he would not be legally accountable
for the conduct of the other person.



(2)  It is not a defense to a prosecution under
section 705-510 that the person solicited could not be guilty of committing the
crime because:



(a) He is, by definition of the offense, legally
incapable in an individual capacity of committing the offense solicited;



(b) He is penally irresponsible or has an immunity to
prosecution or conviction for the commission of the crime;



(c) He is unaware of the criminal nature of the
conduct in question or of the defendant's criminal intent; or



(d) He does not have the state of mind sufficient for
the commission of the offense in question.



(3)  It is not a defense to a prosecution under
section 705-510 that the defendant is, by definition of the offense, legally
incapable in an individual capacity of committing the offense solicited. [L
1972, c 9, pt of §1]



 



Cross References



 



  Liability for conduct of another, see §702-221.



 



COMMENTARY ON §705-511



 



  Section 705-511 resolves a number of problems arising out of
the possible immunity, irresponsibility, or incapacity of a party to a criminal
solicitation.



  Subsection (1) is intended to insure "that one who could
not be liable as an accomplice if the substantive crime were completed will not
be liable for solicitation when the crime is not completed."[1]  For
example, a parent whose child has been kidnapped, and who yielded to the
extortion of the kidnapper, would be regarded as a "victim" of the
kidnapper-extortionist and not as accomplice.  If the parent had offered a
ransom to the kidnappers, the parent's status as a victim of the extortion does
not change and the parent would not, under subsection (1), be guilty of
solicitation.  Similarly, in dealing with abortion by an unlicensed physician,
if a woman is regarded as a person whose conduct is inevitably incident to the
commission of the offense, she could not be an accomplice of the abortionist if
the crime is completed.  If she commands, encourages, or requests such an
abortion, she is not guilty of criminal solicitation.  Whether or not her
conduct in these contexts should be the subject of a penal offense is an
independent question, to be determined on its own merits by the Legislature.



  Subsection (2) precludes a defense based on the incapacity,
irresponsibility, or immunity of the person the defendant solicits.  If the
defendant solicits another 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), it is immaterial that the other person
either does not or cannot, under the circumstances, consummate the crime.



  This subsection is, in part, a counterpart of the complicity
provisions which impose legal accountability upon a defendant who acts through
an innocent agent.[2]  This provision "is based on the universally
acknowledged principle that one is no less guilty of a crime because he uses
the overt behavior of an innocent or irresponsible agent."[3]  If the
agent engages in the conduct in question, accountability for the conduct
results.  If the agent fails or refuses to engage in the conduct in question,
the solicitation is nonetheless criminal.



  Subsection (2) also provides that the immunity of the person
solicited from prosecution or conviction does not in any way provide a defense
for the solicitor.  The immunity provided by law for the person solicited is
not expandable or transferable to the defendant.  For example, A, with the
requisite intent, solicits B to engage in conduct which ordinarily would be
sufficient to establish complicity in conduct specified by the definition of an
offense.  B, however, cannot be guilty as an accomplice because B is a
"victim" of the offense or a person "whose conduct is inevitably
incident to its [the crime's] commission."  A is liable for criminal
solicitation.



  Subsection (3) is the counterpart of the provision which
permits complicity in the conduct of another which, if performed by the
defendant, would not be criminal.  Thus, for example, a defendant may be guilty
of the rape of his wife if he successfully solicits or aids another man to have
sexual intercourse with her by forcible compulsion.  His complicity makes him
legally accountable for conduct which, had he engaged in it himself, would not
have rendered him penally liable.  If the solicitation is not successful, the
solicitor should be liable for the solicitation.  The Code so provides.



  Although previous Hawaii law provided that a solicitor of
criminal activity was liable as an accomplice where the offense was
completed,[4] the provision in this subsection, that one shall not be liable
for solicitation unless one would be liable as an accomplice if the offense
were completed, has had no counterpart in Hawaii statutory or case law. 
However, subsection (1) is in accord with the common law of most
jurisdictions.[5]  The same is true with regard to subsections (2) and (3) on
incapacity, immunity, and irresponsibility.[6]



 



__________



§705-511 Commentary:



 



1.  Prop. Mich. Rev. Cr. Code, comments at 96 (1967).



 



2.  Cf. §702-221.



 



3.  Prop. Mich. Rev. Cr. Code §1010, comments at 96 (1967).



 



4.  H.R.S. §704-3.



 



5.  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, 626 (1961).



 



6.  Prop. Mich. Rev. Cr. Code, comments at 96 (1967).