§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
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§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).