Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Service members and their families often struggle to understand why one person gets charged with attempt while another faces solicitation charges. The confusion makes sense on the surface: both offenses involve crimes that weren’t actually completed. But the distinction is fundamental to how military law assigns criminal responsibility. Attempt punishes someone for their own direct action toward committing a crime. Solicitation punishes someone for trying to get another person to commit the crime for them or with them.
The Core Distinction: Acting Yourself vs Recruiting Others
Article 80 (Attempts) applies when you personally take a substantial step toward committing an offense. You are the actor. You move beyond mere preparation and do something that demonstrates your commitment to completing the crime, even if you ultimately fail or are interrupted.
Article 82 (Solicitation) applies when you try to convince, encourage, or induce another person to commit an offense. You are the recruiter. The crime is complete the moment you make the solicitation with the specific intent that the other person actually commit the offense. Whether they agree, refuse, or report you is irrelevant to your guilt.
This distinction explains why the same underlying goal can result in different charges. A Soldier who personally attempts to access classified information without authorization faces attempt charges. A Soldier who asks a colleague with proper clearance to access and share that same information faces solicitation charges.
Why This Confusion Causes Real Problems
The confusion between these offenses isn’t academic. It affects how service members perceive their legal exposure and sometimes leads to catastrophically poor decisions. People who believe they can’t be punished unless they personally take action toward a crime sometimes freely discuss criminal plans with others, thinking they’re just talking. They don’t realize that the moment they cross the line from discussing a hypothetical to actively encouraging someone to commit an offense, they’ve completed the crime of solicitation.
Conversely, some service members don’t realize how close to criminal liability their own preparatory actions have brought them. They may believe that as long as they haven’t actually completed the underlying offense, they’re legally safe. But attempt liability attaches well before completion. The government doesn’t have to wait until you’ve successfully committed the crime to charge you.
Understanding Attempt Under Article 80
To convict under Article 80, the government must prove three elements: that you did a certain act, that the act was done with the specific intent to commit a certain offense under the UCMJ, and that the act amounted to more than mere preparation and was a direct movement toward the commission of the intended offense.
The “more than mere preparation” requirement is where most cases turn. Thinking about committing a crime isn’t attempt. Planning to commit a crime isn’t attempt. Buying supplies you might use to commit a crime may or may not be attempt, depending on how specifically those actions point toward the intended offense.
The classic formulation asks whether the accused’s actions have passed the point where an ordinary person would be reasonably confident the accused intended to complete the crime. Reconnoitering a location you plan to burglarize might be preparation. Approaching that location at night with burglary tools and beginning to manipulate the lock crosses into attempt.
Example fact patterns for attempt:
A service member plans to steal a government laptop. She waits until the office is empty, approaches the laptop, and begins disconnecting cables when she’s interrupted. She hasn’t completed the larceny (she never removed the laptop from the office), but she’s taken substantial steps directly toward completion. That’s attempt.
A Sailor decides to assault a shipmate he’s been arguing with. He locates the shipmate, approaches with a raised fist, but is restrained by bystanders before making contact. The assault was never completed, but the attempt is clear.
An Airman intends to use marijuana. He purchases the drug, takes it back to his dorm room, and is preparing to smoke it when his supervisor unexpectedly enters. He never actually used the drug, but he’s likely progressed beyond preparation into attempt.
Understanding Solicitation Under Article 82
Article 82 requires proof that you solicited or advised another person to commit an offense, and that you did so with the specific intent that the offense actually be committed. Importantly, the solicitation itself is the crime. The moment you seriously encourage or advise another person to commit an offense with genuine intent that they do so, you’ve committed solicitation.
The other person’s response is irrelevant to your guilt. If they refuse, you’re still guilty. If they report you to command, you’re still guilty. If they pretend to agree but are actually cooperating with investigators, you’re still guilty. If they agree and actually commit the offense, you may face additional liability as a co-conspirator or principal, but the solicitation was already complete at the moment of asking.
The specific intent requirement means that jokes, hypotheticals, and speculative discussions don’t qualify. If two service members are venting about a difficult supervisor and one says, “Someone should just punch that guy,” without genuinely intending or expecting the other person to actually assault the supervisor, that’s not solicitation. But if one says, “I’ll pay you $500 to beat him up after formation tomorrow,” and means it, that’s solicitation regardless of the other person’s response.
Example fact patterns for solicitation:
A Staff Sergeant asks a junior Marine to submit a false travel claim and split the proceeds. The moment the Staff Sergeant makes the request with genuine intent, solicitation is complete. Whether the junior Marine agrees, refuses, or reports the conversation doesn’t change the Staff Sergeant’s guilt.
A service member offers to pay a contact to purchase controlled substances off-base and bring them back. The purchase request is the solicitation, even if the contact never follows through.
A Petty Officer tries to convince a subordinate to lie to investigators about an ongoing investigation. The advice to commit perjury or false official statements is solicitation, complete upon the asking.
The Intent Requirement: Similar but Applied Differently
Both offenses require specific intent regarding the underlying crime. For attempt, you must intend to complete the underlying offense yourself. For solicitation, you must intend for the other person to actually commit the offense.
This intent requirement excludes mere talk, fantasy, or discussion from criminal liability under either article. But investigators and prosecutors are skilled at distinguishing genuine criminal intent from idle talk. Context, specificity, and subsequent actions all reveal whether someone truly intended criminal action.
A service member who asks a colleague, “Wouldn’t it be great if someone burned down that building?” probably hasn’t committed solicitation. But a service member who provides a specific plan, suggests a date and time, offers payment, or follows up to ensure compliance has demonstrated the intent that transforms speech into crime.
What Happens When Solicitation Succeeds
When solicitation succeeds and the solicited person agrees to commit the offense, additional criminal liability potentially attaches. The agreement itself may constitute conspiracy under Article 81. If the solicited person actually commits the offense, the solicitor may be liable as a principal under theories of aiding and abetting.
But even if the solicitation leads to conspiracy and the completed offense, the solicitation remains a separate crime. In practice, prosecutors may charge solicitation alongside conspiracy and the substantive offense, or they may choose to focus on the more serious charges. This decision often depends on the strength of evidence for each offense and strategic considerations about presenting the case to a panel.
Abandonment and Withdrawal: Different Standards
For attempt, the defense of voluntary abandonment may apply if you completely and voluntarily renounce your criminal purpose before completing the offense. However, abandonment caused by increased difficulty, fear of detection, or the arrival of law enforcement doesn’t qualify. The renunciation must be genuine and voluntary.
For solicitation, abandonment is more complicated. Because the crime is complete upon making the solicitation with the requisite intent, subsequent regret doesn’t undo the offense. However, if you take affirmative steps to prevent the solicited person from committing the offense, this may be considered in mitigation at sentencing or may influence charging decisions. Some jurisdictions recognize a defense if the solicitor completely countermands the solicitation and prevents the offense, but this is narrower than the abandonment defense available for attempt.
Punishment Considerations
Both offenses carry punishments linked to the underlying offense that was attempted or solicited.
For attempt under Article 80, the maximum punishment generally cannot exceed the maximum authorized for the completed offense. However, for an attempted offense that carries a mandatory minimum punishment or mandatory discharge, those requirements typically don’t apply to the attempt. Attempt is treated as a lesser form of the completed offense for punishment purposes.
For solicitation under Article 82, the maximum punishment is generally tied to the maximum for the offense solicited. The logic is similar: asking someone to commit murder is less culpable than actually committing murder, but more culpable than asking someone to commit a minor offense.
Both offenses can result in punitive discharges, confinement, and other consequences typical of UCMJ convictions. The actual sentence in any given case depends on the seriousness of the underlying offense, the accused’s military record, and the specific circumstances of the case.
Overlapping Scenarios and Charging Decisions
Sometimes conduct could theoretically support either charge. Consider a service member who wants drugs and asks someone else to buy them. Is this solicitation (asking another to commit a drug offense) or is it preparation for the service member’s own attempted drug use?
Prosecutors typically analyze who the principal actor would be for the substantive offense. If the service member wanted someone else to buy and use drugs, that’s solicitation of their drug use. If the service member wanted someone else to buy drugs so the service member could use them, the service member might face both solicitation of the purchase and attempt to use.
In practice, prosecutors choose charges based on what the evidence most clearly supports and what accurately captures the accused’s culpability. The choice isn’t arbitrary but reflects the facts of each case.
The Role of the Solicited Person
One important asymmetry exists between these offenses: attempt requires only the accused’s actions, while solicitation inherently involves a second person. That second person becomes a crucial witness for the government.
In solicitation cases, the person who was solicited often testifies against the accused. Their credibility, their own potential motives, and their interpretation of the conversation all become central issues at trial. Defense attorneys often focus on whether the solicitation was genuinely serious or was misunderstood, taken out of context, or fabricated by someone with a grudge.
For attempt, the evidence may be more physical and documentary. Security footage, forensic evidence, and the accused’s own statements typically dominate. Witness credibility issues exist but are usually different in character.
Frequently Asked Questions
If the person I allegedly solicited was actually an undercover investigator or informant, can I still be convicted of solicitation?
Yes. The crime of solicitation is complete when you make the solicitation with the required intent. It doesn’t matter whether the person you solicited was capable of committing the offense, willing to commit it, or was actually an investigator. Military courts have consistently held that soliciting an undercover agent or informant is still solicitation. This is sometimes called the “legal impossibility” doctrine: even though it was actually impossible for the offense to be completed (because the agent was never going to commit it), you are still guilty of solicitation because your intent and actions constituted the offense. The same principle generally applies to attempt charges when circumstances unknown to the accused make completion impossible.
Can I be charged with both attempt and solicitation arising from the same incident?
It depends on the facts. If your conduct includes distinct acts supporting each offense, dual charges are possible. For example, if you solicited someone to help you commit robbery and, when they refused, you proceeded to attempt the robbery yourself, you could face both charges. However, if the conduct is truly unitary (meaning the solicitation and the attempt are essentially the same act viewed from different angles), there may be multiplicity issues that limit separate convictions or punishments for both. This is a technical legal question that depends on the specific facts and how the charges are drafted.
What if I changed my mind after soliciting someone but before they could act on it?
Unlike attempt, where voluntary abandonment before completion may provide a defense, solicitation is complete upon making the request with the requisite intent. Changing your mind afterward doesn’t undo the crime that’s already been committed. However, if you take affirmative steps to prevent the solicited person from committing the offense (such as expressly and clearly rescinding the request and confirming they won’t proceed), this may influence prosecutorial discretion about whether to charge you, and it could be considered in mitigation at sentencing. The key is that your subsequent actions don’t erase your initial criminal conduct but may demonstrate genuine remorse or reduced culpability.