UCMJ Article 82: Solicitation

Article 82, codified at 10 U.S.C. 882, makes it a crime to solicit or advise another person to commit an offense under the Uniform Code of Military Justice. It reaches the words and conduct that try to set a crime in motion through someone else, and it does so without waiting to see whether the person solicited ever acts. The offense protects good order and discipline against the corrupting effect of one service member urging another into crime, on the view that the encouragement is itself a danger to the force regardless of whether it succeeds. The article singles out four especially grave objects of solicitation for separate treatment, while a general provision covers the solicitation of any other offense.

What the article covers

The statute is built in two parts. The general provision makes it an offense for any person subject to the code to solicit or advise another to commit an offense under the code, other than the four offenses addressed separately. The special provision addresses solicitation or advice to commit desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99. Those four are set apart because the harm they threaten to the military mission is so serious that the law treats the solicitation of them more severely than the solicitation of ordinary offenses.

To solicit is to seriously request, advise, command, counsel, or otherwise encourage another to commit a crime. The communication can be spoken, written, or made through electronic means, and it can be made to one person or to several. What matters is the substance of the request rather than its form, so a text message, an email, a social-media message, or a recorded conversation can establish the offense as readily as a face-to-face statement, and often more clearly because it leaves a fixed record.

What the government must prove

The core of the offense has two elements: that the accused solicited or advised a certain person to commit a certain offense under the code, and that the accused did so with the intent that the offense actually be committed. The second element is the heart of the case. The accused must have genuinely intended that the person solicited carry out the crime, not merely have spoken about it idly.

This requirement separates a true solicitation from venting, boasting, dark humor, sarcasm, or abstract discussion. A statement made plainly in jest, or in a setting where no reasonable listener would take it as a serious request to commit a crime, lacks the necessary intent. The fact finder examines the whole context: the words used, their specificity, the seriousness of the manner, the relationship between the speaker and the listener, and any steps the accused took to make the crime possible, such as offering payment, providing tools, or supplying information. The more specific and directed the request, and the more it is accompanied by facilitation, the harder it is to dismiss as something other than a genuine inducement.

The offense is complete when the solicitation is made

A defining feature of Article 82 is that the crime is complete at the moment the solicitation or advice is communicated with the required intent. The person solicited need not agree, need not act, and need not even take the request seriously. He may refuse outright, ignore it, report it to authorities, or turn out to be an undercover investigator, and the solicitation is still a completed offense. The article focuses entirely on the conduct and intent of the person who does the soliciting, not on the response.

The outcome does matter to punishment, however. When the solicited offense is in fact committed or attempted as a result of the solicitation, that fact becomes part of the case and raises the exposure of the accused. When the offense is neither attempted nor committed, the accused is still guilty of the solicitation but faces a separate, generally lower punishment scheme. The success or failure of the inducement therefore changes the sentence rather than the existence of the crime.

Maximum punishment

For solicitation under the general provision, the maximum punishment is keyed to the offense solicited. If that offense is attempted or committed, the accused may be punished with the punishment authorized for the offense itself; if it is not attempted or committed, the accused is punished as a court-martial may direct under the limits set by the current Manual. Because the punishment tracks the underlying crime, soliciting a grave offense carries far greater exposure than soliciting a minor one.

For the four special objects, desertion, mutiny, sedition, and misbehavior before the enemy, the statute provides that if the solicited offense is attempted or committed, the accused is subject to the punishment provided for that offense, and if it is not attempted or committed, the accused is punished as a court-martial may direct. The Manual for Courts-Martial fixes the specific maximums and, for offenses committed on or after 27 December 2023, the sentencing parameters that a military judge applies. Because those figures are reform-sensitive and are set out in detail in the current Manual, the precise confinement ranges, discharge, and forfeiture authorized for each variation should be confirmed against the current Manual for Courts-Martial at the time of any charge.

Defenses

The most common defense is the absence of the specific intent the article requires. Evidence that the statement was a joke, an expression of frustration, hyperbole, or hypothetical talk, rather than a serious effort to induce a crime, defeats the charge because intent that the offense be committed is an element. The context that makes a request look serious also cuts the other way: where the words were vague, conditional, or plainly not meant to be acted upon, the government cannot establish that the accused wanted the crime to occur.

A related line distinguishes solicitation from the lawful exercise of authority. A superior who issues a lawful order within the scope of military authority and for a legitimate purpose is not soliciting a crime, even though the order directs another to act. The order becomes solicitation only if it directs conduct that is itself unlawful, because an order to commit a crime is not a lawful order. The dividing line is the legality of what is directed, so the analysis turns on whether the directed conduct fell within lawful authority rather than on the chain-of-command setting in which it was given.

Article 82 belongs to the family of inchoate offenses that punish conduct aimed at crime before the crime is complete, and it is distinct from its neighbors. Attempt under Article 80 requires the accused’s own substantial step toward an offense and is not satisfied by mere words to another. Conspiracy under Article 81 requires an agreement between two or more persons plus an overt act, so it reaches the point where the person solicited agrees and the two proceed together. Solicitation, by contrast, is complete the instant the request is made and needs no agreement, no overt act, and no response.

Those distinctions matter to charging. If the person solicited agrees and an overt act follows, the conduct may have ripened into a conspiracy, and the government may charge conspiracy rather than solicitation, with the solicitation standing as a lesser offense. Before 2019, many solicitations of offenses outside the four named crimes were charged under the general article, Article 134; the Military Justice Act of 2016 consolidated solicitation under Article 82, so current charging looks to this article for soliciting offenses under the code. Which inchoate article fits a given case depends on whether the essence of the wrongdoing is the accused’s own step toward the crime, an agreement with another, or the inducement of another to act.

Sources

10 U.S.C. 882, Article 82, Soliciting commission of offenses: https://law.cornell.edu/uscode/text/10/882
Manual for Courts-Martial, United States, Part IV (Punitive Articles), Article 82: https://jsc.defense.gov
United States Court of Appeals for the Armed Forces, Daily Journal and opinions on Article 82: https://armfor.uscourts.gov

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.