James R. Balmforth: Criminal Defense Lawyer Woods Cross Utah

Certain sexual conduct between adults and minors is classified as statutory rape without regard to the defendant’s belief as to the victim’s age and/or whether the victim consents to the conduct. Historically, statutory rape laws were enacted to protect the chastity of young women, although today the statutes are applied equally to protect young men. Despite the modern gender-neutral interpretation and application of statutory rape laws, the historical purpose behind the statutes and their gender-specific application continues to influence both public opinion and judicial outcomes in certain cases. If you have been charged with statutory rape, contact an experienced Wood Cross Utah criminal defense lawyer immediately.

Solicitation of a Crime

Occasionally, individuals planning criminal activity do not intend to personally commit the unlawful act. Instead, they intend to solicit and encourage others to carry out the criminal conduct. A person who solicits, urges or encourages another to commit an unlawful act has gone beyond the stage of simply having bad thoughts and into the realm of acting upon those thoughts. The act of soliciting another to commit a crime, although still part of the preparatory or planning stage of criminal activity, rises to the level of criminal conduct. Two questions that often arise in the area of criminal solicitation are: Why does the criminal law punish individuals for soliciting others to commit crimes? Isn’t solicitation really just another form of expressing “bad thoughts,” which is not punishable under the criminal law? The rationale for punishing the crime of solicitation is threefold. First, as in the example, if there is evidence of intent and sufficient conduct in furtherance of that intent, then those who solicit others to engage in criminal conduct have exhibited a level of dangerousness sufficient to pose a genuine threat to society. Second, if one of the goals of criminal law is deterrence, then punishment of those who solicit others to commit crimes as soon as they have reached a level of dangerousness sufficient to society will deter others from planning, preparing or soliciting others to engage in criminal conduct. Lastly, law- abiding citizens should not have to fear being subjected to the continual solicitations and urgings of those who would like to engage in criminal conduct. As a prerequisite for the crime of solicitation, the person being solicited (the “solicitee”) must understand that she or he is being asked to engage in criminal conduct and ultimately refuse to go along with the plan. Typically, the solicitee is the only witness to the transaction; if she or he does not interpret the request of the solicitor as an urging to engage in criminal conduct, then there is little chance that the solicitor’s conduct will be reported to authorities. Similarly, the solicitee must ultimately refuse to engage in the criminal conduct because, again, there is little chance that the solicitee will report the conduct to authorities if he accepts the solicitation and agrees to carry out the plan. In fact, if there is an agreement by the solicitee to carry out the criminal conduct, then the crime is no longer solicitation and becomes instead the crime of conspiracy. Since it is not a crime to have bad thoughts or merely to discuss those thoughts with others, one difficulty associated with the crime of solicitation is proving the solicitor’s intent to encourage another person to engage in criminal conduct.
The difficulty of drawing the definitional line between a person who is merely expressing bad thoughts and one who actually intends to have another commit a crime has led many states to impose a statutory requirement that there be some corroborating evidence of criminal intent in cases of solicitation. This means that when considering all of the surrounding circumstances, there must be clear and convincing evidence of the solicitor’s criminal intent.

The “Innocent Instrumentality”

Sometimes a person contemplating criminal activity procures the assistance of another through deception. If the person actually committing the crime is, for whatever reason, unaware that he or she is engaging in criminal conduct, then that person is considered an innocent instrumentality of the solicitation. Not being aware that he or she is engaging in criminal conduct, the innocent instrumentality does not possess the necessary mental state for criminal liability. The solicitor is, however, criminally liable for the conduct of the innocent instrumentality.

Conspiracy

The crime of conspiracy requires an agreement between two or more parties to commit an unlawful act and the commission of an overt act in furtherance of the agreement. Like the crime of solicitation, the conduct examined in conspiracy cases takes place before the actual commission of the criminal offense. Once again, the critical question involves determining when the preparatory conduct has gone beyond merely having bad thoughts and into the realm of acting upon those thoughts. In the area of conspiracy, the requirement of an overt act in addition to the conspiratorial agreement provides some circumstantial evidence that the parties have reached a sufficient level of dangerousness (i.e., gone beyond mere bad thoughts) to warrant punishment for their conduct.

One reason for punishing conspiratorial agreements is the concern that when people come together and agree to engage in criminal conduct, there is a greater likelihood that their goals and objectives will be accomplished. They are more likely to be overcome by a “mob mentality” from which they can derive the necessary moral support to carry out their criminal activities. The three major issues that arise when examining the crime of conspiracy involve defining the parties to the conspiracy, measuring the scope of the conspiratorial agreement and determining when the conspiracy terminates.

A conspiratorial agreement can be written, verbal or implied by conduct. Because a conspiracy involves an agreement between parties, in some instances simply identifying the parties who have actually agreed to engage in the unlawful conduct will reveal the parties to the agreement. When the conspiratorial agreement is implied by conduct, however, it becomes more difficult to determine the participants in the conspiracy.
Because of the nature of family/marital relationships, there are innumerable activities that may resemble conspiratorial conduct, but may in fact be nothing more than the normal cooperative activities that take place among family members. Family members should not be deemed involved in criminal activities simply because they have engaged in certain familial conduct.

The Unlawful Act Requirement

A conspiracy involves an agreement between two or more persons to commit an unlawful act. In most instances, the unlawful act that serves as the objective of the conspiracy must be a crime. However, a small number of jurisdictions permit a charge of criminal conspiracy when the objective of the conspiracy would not be criminal if one person engaged in that conduct. For example, some statutes make it a crime for two or more persons to conspire to damage a person’s reputation or business or commit acts that injure the public health or morals. If done by one person, such conduct would not be criminal, although it might raise questions of civil liability. But if two people agree to damage another’s reputation, then they may be charged with the crime of conspiracy. One fundamental problem that arises when basing a charge of conspiracy on conduct that is not inherently criminal is fair notice to citizens as to the potential for criminal liability. More specifically, if the unlawful act is not criminal when committed by one person, is it fair to subject individuals to the stigma and punishment associated with criminal conduct simply because two people agreed to engage in that same conduct? This potential for unfairness has led many jurisdictions to limit liability for conspiracy to instances when the unlawful act is itself a crime.

The Scope of the Conspiratorial Agreement

Conspiracy is a specific intent offense. This means that the defendants must consciously set out to engage in specific unlawful conduct. The scope of the conspiratorial agreement is measured by what the parties specifically intend to accomplish as their overall objective as well as any other unlawful activities that are necessary to carry out their criminal objectives. The scope of a conspiratorial agreement can change over time and may encompass additional “sub-agreements” necessary to achieving the overall objective.

Withdrawal from a Conspiracy

Even though a conspirator has explicitly or implicitly agreed with another to commit an unlawful act, he can nevertheless withdraw from the conspiratorial agreement and avoid some criminal liability if the withdrawal is done in a timely and effective manner.

To withdraw from a conspiratorial agreement, a conspirator must convey his desire to withdraw to all of his confederates. He must provide effective notice that he no longer supports the criminal objectives and voluntarily remove himself completely from the criminal association. Additionally, some jurisdictions require that the conspirator give notification to law enforcement authorities as further evidence of his intent to impede the successful commission of the unlawful objective.

To abandon a conspiracy, a conspirator must do more than simply withdraw from it. He must completely and voluntarily abandon the goals of the conspiracy and take affirmative steps to impede the success of the conspiracy. Abandonment, if effective, relieves the abandoning conspirator from liability for the conspiracy itself.

Conspiratorial Liability

The crime of conspiracy is punished because of the special danger presented by group activity that has a criminal objective. In fact, conspiracy is considered such a dangerous offense that even when conspirators proceed beyond the agreement stage and actually commit the crime as planned, the conspirators can still be charged with the crime of conspiracy and the criminal offense they commit. By allowing the simultaneous charges based upon the conspiracy and the actual crime, the government can seek additional criminal penalties against the conspirators. Furthermore, it is hoped that the threat of conviction and punishment for both conspiracy and the actual crime will deter individuals from initially joining together for the purpose of engaging in unlawful conduct. Another aspect of conspiratorial liability that is specifically designed to deter group criminal activity is vicarious liability. Vicarious liability means that a conspirator will be responsible for the criminal conduct of his coconspirators if those crimes are committed in furtherance of the conspiratorial agreement.

Criminal Attempts

The crime of criminal attempt is punished to protect society by intervening, apprehending and prosecuting individuals at the earliest opportunity before a crime is completed. If criminal activity has not been stopped at either the solicitation or conspiracy stage, the law of criminal attempts provides one more opportunity to prevent the criminal conduct and the resulting harm to society.

To prove a criminal attempt, the government must demonstrate that the defendant has the intent to commit a specific offense and takes a “substantial step” toward completing that offense. By proving these elements, the government demonstrates that, although the crime was not ultimately completed, the defendant intended to commit the crime and took sufficient steps in furtherance of that criminal intent. The mental state (intent to commit an offense) plus the voluntary act (substantial step) provide significant evidence of the defendant’s dangerousness to society. Further, although foiling the actual commission of the crime prevents a greater harm to society, there is nevertheless a harm to society with a criminal attempt because the defendant comes dangerously close to completing his criminal objective. The criminal law imposes liability for attempts in order to deter others from carrying their criminal activity to this dangerous point.

Intent to Commit the Offense

To be liable for a criminal attempt, the defendant must have the intent to commit a specific offense. For example, to be charged with attempted murder, the defendant must intend to kill the victim. Similarly, if the crime charged is attempted robbery, the defendant must have the intent to take property from the victim with the use of force. In most instances, circumstantial evidence will be used to prove the defendant’s intent. Circumstantial evidence allows the judge or jury to draw inferences as to which crime the defendant specifically intended to commit. In cases of attempt, the circumstantial evidence of intent is usually developed by examining what steps the defendant took to begin carrying out the offense.
Statutory rape or an offense to commit statutory rape is a serious criminal charge that can alter your life forever. Don’t let this happen to you. Contact an experienced Wood Cross Utah criminal defense lawyer if you have been charged with statutory rape or attempt to commit statutory rape.