UCMJ Article 82 – Solicitation

UCMJ Article 82 defines the offense of solicitation. It punishes a service member who wrongfully solicits or advises another to commit a UCMJ offense, provided the solicitation was made with the intent that the offense actually be committed. The solicitation itself is the crime, regardless of whether the solicited offense is ever attempted or carried out. This reflects the military’s position that encouraging misconduct is inherently dangerous to discipline and readiness.

Solicitation under Article 82 is broader than ordinary persuasion. It includes urging, advising, inciting, or otherwise trying to persuade another person to commit an offense. The offense is complete once the words or acts of solicitation are made with the required intent. No overt act toward the crime is needed by the person solicited, and no actual completion is necessary. The wrongful act lies in planting the seed of misconduct and attempting to move another person into unlawful action.

Key Elements

The prosecution must prove three essential elements. First, the accused solicited or advised another to commit a specific UCMJ offense. Second, the solicitation was wrongful, meaning it was not protected speech or done in a lawful context. Third, the accused intended that the crime be committed as a result of the solicitation. Each element must be established beyond a reasonable doubt for conviction.

Importantly, the person solicited does not need to agree. Even if they refuse or report the solicitation, the offense is still complete. The law recognizes that the act of asking another to commit a crime threatens discipline, regardless of the response.

Scope and Application

Article 82 applies across the full range of UCMJ offenses. Solicitation to commit theft, assault, desertion, fraud, drug distribution, or even more serious offenses such as mutiny or murder can all fall within its scope. The severity of the punishment depends on the seriousness of the offense solicited.

The article also covers solicitation to commit desertion or mutiny as special categories. Because these crimes strike directly at the heart of military order, solicitation of them is punished particularly harshly. This underscores the priority the military places on cohesion, obedience, and loyalty.

Punishment

Punishment under Article 82 depends on the nature of the solicited offense. Generally, the maximum punishment is the same as for the solicited offense, except that the death penalty cannot be imposed for solicitation. If the solicited crime is punishable by life imprisonment, then life confinement is possible for the solicitation. For lesser offenses, the punishment is capped by the maximum penalty for the underlying offense.

This structure ties liability to the gravity of the misconduct being encouraged. Soliciting a petty offense will not carry the same consequences as soliciting a capital crime. The punishment reflects the seriousness of what was solicited, not the success of the solicitation.

Defenses

Possible defenses include showing that the accused did not intend for the offense to be committed, or that the communication was misunderstood, joking, or lacked serious purpose. The government must prove specific intent beyond a reasonable doubt. Additionally, the solicitation must be wrongful. If the solicitation occurred in a lawful training exercise or other authorized context, there may be no liability.

Entrapment may also be raised if government agents induced the solicitation through improper means. However, entrapment is carefully scrutinized in military courts and is rarely successful unless misconduct clearly originated from official inducement.

Examples

If a soldier tells another to steal equipment from supply and offers to buy drinks in return, that is solicitation even if the theft never occurs. If an airman urges another to falsify a travel voucher, the offense of solicitation is complete once the words are spoken with the intent that the crime happen. A sailor encouraging another to desert before deployment commits solicitation even if the other refuses. These examples show the broad application of Article 82 to prevent harm before it begins.

Conclusion

UCMJ Article 82 ensures that attempts to corrupt others into misconduct are met with accountability. The offense lies in urging or advising criminal behavior, not in whether the plan succeeds. This provision protects discipline by deterring the spread of unlawful ideas and preventing the encouragement of misconduct from undermining unit cohesion. In the armed forces, where order and trust are paramount, solicitation is treated as a serious breach of duty.

Frequently Asked Questions

1. What is solicitation under Article 82?
It is the wrongful act of asking, advising, or urging another to commit a UCMJ offense. The crime is complete once the solicitation is made with intent that the offense be committed. The actual commission of the offense is not required.

2. Does the person solicited need to agree or act?
No, the offense is complete even if the solicited person refuses. Liability attaches once the solicitation occurs with the proper intent. The response of the other person is irrelevant.

3. How is punishment determined?
Punishment is based on the seriousness of the solicited offense. The maximum is generally the same as the penalty for that offense, except that death cannot be imposed for solicitation. If the solicited crime is punishable by life, life imprisonment may be imposed.

4. Can solicitation be defended as a joke or misunderstanding?
Yes, if the accused can show that the words were not intended seriously, the government may fail to prove intent. The prosecution must establish that the accused genuinely meant for the offense to be committed. Joking or casual remarks without serious purpose may not qualify.

5. What if the solicitation occurs in a training or authorized context?
If the context shows that the solicitation was part of lawful orders, exercises, or official duties, it may not be wrongful. The prosecution must prove the solicitation was outside legitimate authority. Context is critical in these cases.

6. Is entrapment a defense?
Entrapment can apply if government agents induced the solicitation in a way that created the crime. However, the defense must show that the misconduct originated with government inducement and not with the accused. Courts treat entrapment narrowly.

7. What types of crimes are often involved in solicitation charges?
Common examples include solicitation to commit larceny, fraud, assault, drug offenses, or desertion. More serious cases involve solicitation to commit mutiny or murder, which carry especially severe penalties.

8. How does solicitation differ from conspiracy?
Solicitation requires only that one person urge another to commit a crime with intent it be carried out. Conspiracy requires an agreement between two or more people plus an overt act. Solicitation can occur even without agreement.

9. Why does the military punish solicitation so strongly?
Because it threatens discipline by encouraging others to commit crimes. The offense spreads unlawful intent and undermines trust. By punishing solicitation early, the UCMJ prevents corruption of others and protects unit cohesion.

10. Can solicitation charges apply even if the solicited offense is minor?
Yes, solicitation applies to any UCMJ offense. However, punishment is capped at the maximum authorized for the underlying crime. Soliciting minor offenses leads to lighter penalties, while serious crimes bring harsher consequences.

Sources

  • Uniform Code of Military Justice, 10 U.S.C. § 882, Article 82
  • Manual for Courts-Martial, United States (latest edition)
  • Department of Defense, Military Justice Regulations and Commentary
  • Legal Information Institute, Cornell Law School, UCMJ statutory text
  • Military Attorney Joseph L. Jordan, Articles of the UCMJ web page

This content is for informational purposes only. If you are facing issues related to Article 82 or any other UCMJ provision, you should consult a qualified military attorney.

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