ARTICLE 82 SOLICITATION
Article 82 covers acts where a person solicits another to commit desertion or to commit mutiny or solicits another to misbehave before the enemy or sedition.
The elements of Article 82 are as follows:
- That the individual who stands accused advised or solicited another individual(s) to commit an offense outlined in Article 82.
- That the individual being accused intended for the offense to be committed when he advised/ solicited the other(s) to do so.
- That the other person(s) committed or attempted to commit the offense as a consequence of the accused person's solicitation or advise.
EXPLANATION OF ARTICLE 82 SOLICITATION
The accused shall be punished under Article 82 provisions if it is proven that he made the solicitation/ gave advice to influence another to commit one of the 4 Article 82. The punishment stands regardless of whether the other agreed to this advice or that they actually acted upon it. The act of solicitation is deemed an instantaneous offense, i.e.: it is an offense as soon as the solicitation is made or advise is given independent of whether it has the desired effect on the other.
Four Specific offenses are outlined under Article 82:
- When a person solicits or advices another to desert, violating Article 85.
- When a person solicits or advices another to commit mutiny, violating Article 94
- When a person solicits or advices another to carry out an act of misbehavior before enemy, Article 99
- When a person solicits or advices another to commit sedition, Article 94,
POINTS TO NOTE ABOUT ARTICLE 82
- No matter how the solicitation is made (in writing, by word of mouth, via other persons), the accused is deemed to be guilty of Article 82 violation.
- Irrespective of how the other person received the advice or solicitation, the accused is liable for punishment if it can be proved that he did solicit or advice the other with wrongful intent to bring about the commitment of an Article 82 offense. This is an attempts based crime.
- In certain offenses, solicitation by the person accused is deemed to be proof that he did commit the offense. These are considered as separate offenses tried under other sections the UCMJ.
- Circumstantial evidence to prove wrongful intent are admissible in such trials where and when applicable.
WHAT IS THE MAXIMUM PUNISHMENT GRANTED UNDER ARTICLE 82 SOLICITATION?
When Article 82 violations are proved, the accused is given the punishment that is deemed appropriate for the offense that is advised/ solicited. However, there is a difference when the accused has solicited or advised another, but the latter has not committed the offense or attempted to commit it.
In situations where the offense has not been committed by the other person or in case of mutiny or desertion, where the other does not attempt to commit these offenses; punishment may be given as follows:
- Advice/ solicitation to desert: Forfeiture of pay cum allowances, dishonorable discharge. In addition, solicitation to desert may result in three years confinement for the accused.
- Advice/ solicitation to commit mutiny: Forfeiture of pay cum allowances, dishonorable discharge. In addition, these charges may result in confinement for a ten year period.
- Advice/ solicitation to commit misbehavior in front of enemy: Forfeiture of allowances and pay, dishonorable discharge. In addition, these charges may result in a ten year confinement for the accused.
- Advice/ solicitation to commit sedition: Forfeiture of allowances and pay, dishonorable discharge. In addition, these charges may result in confinement for ten years.
SOLICITATION CHARGES DEPENDING ON THE CRIME SOLICITED
The crime of solicitation is not limited to crimes against the country, but may also involve solicitation to sell drugs or engage in prostitution or produce child pornography. In fact, these are the most common solicitation crimes in the military. However, under Article 82, only the crimes of mutiny, desertion, misbehavior before the enemy and sedition can be charged. All other solicitation crimes are covered under Article 134. Article 134 covers acts of solicitation that were intended to persuade another to commit an offense other than the 4 offenses named under Article 82.
For more information about this punitive article, refer to the Manual for Courts Martial.