Chapter 23 Solicitation

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 23 Solicitation

A. Solicitation

1. Definition

South Carolina lacks a statutory provision prohibiting solicitation, and therefore relies upon the common law definition of the offense. See State v. Prince, 447 S.E.2d 177, 182 (S.C. 1993). For solicitation to have occurred, "it is only necessary that the actor, with intent that another person commit a crime, have enticed, advised, invited, ordered, or otherwise encouraged that person to commit a crime." State v. Smith, 447 S.E.2d 175, 177 (S.C. 1993) (internal quotation marks omitted). In fact, the crime solicited need not be committed; the crime of solicitation is complete once the defendant, with the requisite mens rea, has solicited another to commit the underlying crime. Prince, 447 S.E.2d at 182.

The common law offense of solicitation forbids solicitation of a person to commit a felony. See McAninch, Fairey, and Coggiola, THE CRIMINAL LAW OF SOUTH CAROLINA, 454 (6^th ed. 2013) (hereafter, McAninch, Fairey, and Coggiola (2013)). To commit the offense, the defendant must request that another commit the offense and the defendant must have the intent that the offense be committed. Id. at 453.

Except where statutorily defined, solicitation of a misdemeanor is not a criminal offense. Id. at 454; see also 4 WHARTON'S CRIMINAL LAW § 671 (2020) (noting that at common law, if the crime solicited is a non-serious misdemeanor: "the solicitor is guilty of no offense.").

These statutorily defined exceptions include solicitation of prostitution. S.C. Code Ann. § 16-15-90.

2. Defenses

a. Crime was intended...