2014 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
705. Inchoate Crimes
705-510 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]

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§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).