Defenses to Criminal Solicitation in Georgia: O.C.G.A. § 16-4-7

Have You Been Charged with Criminal Solicitation?

In Georgia, criminal solicitation is a serious offense under O.C.G.A. § 16-4-7. The law defines criminal solicitation as the act of intentionally encouraging, requesting, or attempting to persuade someone to commit a crime.

This statute is aimed at preventing individuals from attempting to incite criminal behavior, even if the crime itself is never carried If you or someone you know is facing a charge of criminal solicitation, it’s essential to understand the legal implications, potential consequences, and available defenses.

As Georgia criminal defense lawyers, we wanted to write a blog post breaking down what criminal solicitation is under Georgia law, explore potential defenses to these charges, and provide insights into how an experienced criminal defense lawyer can help mitigate or dismiss charges of criminal solicitation.

What Is Criminal Solicitation under O.C.G.A. § 16-4-7?

Under Georgia Code Section 16-4-7, criminal solicitation is defined as:

• • Encouraging or urging someone to commit a criminal act,
  • Requesting or attempting to persuade someone to commit a crime.

Criminal solicitation is typically considered a felony if the solicitation involves a serious crime, such as murder or drug trafficking. The law does not require that the crime be completed for the solicitation to be charged; even if the person solicited does not follow through, the individual making the solicitation can still be charged.

In other words, the charge of criminal solicitation is based on the intent to influence or persuade someone to commit a crime, not on whether the crime itself was ultimately committed. If convicted of criminal solicitation, you can face significant penalties, including imprisonment, depending on the nature of the crime solicited.

Examples of Criminal Solicitation:

• • Soliciting someone to commit murder: Asking another person to kill someone, whether or not the murder occurs.
  • Soliciting drug trafficking: Trying to persuade someone to transport or sell illegal drugs.
  • Soliciting theft or burglary: Asking someone to break into a building or steal property.

Criminal solicitation can occur in various forms, including verbal requests, written messages, or even indirect actions that suggest a desire for the commission of a crime.

Elements of Criminal Solicitation

To be convicted of criminal solicitation in Georgia, the prosecution must prove several elements:

1. • Intent: The defendant must have intentionally encouraged, requested, or attempted to persuade another person to commit a crime.
   • Communication: There must have been some form of communication (spoken, written, or through actions) that conveys the intent to solicit the commission of a crime.
   • Solicitation of a Crime: The crime being solicited must be a criminal offense under Georgia law. The crime does not need to be completed or even attempted; the solicitation alone is sufficient.

If these elements are proven beyond a reasonable doubt, the individual can be convicted of criminal solicitation. However, various defenses can be raised to challenge the evidence and the charge itself.

Defenses to Criminal Solicitation in Georgia

Even if the prosecution can establish the elements of criminal solicitation, a defendant may have several legal defenses available to them. Below are common defenses used in criminal solicitation cases under O.C.G.A. § 16-4-7:

1. Lack of Intent

One of the most important elements in a criminal solicitation case is the defendant’s intent. If you did not intend to persuade or encourage another person to commit a crime, you may have a valid defense. In Georgia, criminal solicitation requires specific intent; it’s not enough to merely mention a criminal act without the intent to incite or persuade the other person to commit it.

For example, if you were joking or speaking metaphorically and did not seriously encourage someone to commit a crime, you might argue that your actions lacked the necessary intent to meet the legal definition of solicitation.

How the Defense Works:

• • The defense would argue that there was no specific intent to induce criminal behavior.
  • The defendant could argue that the communication was either misunderstood or not meant to encourage illegal activity.

This defense often depends on the context in which the communication occurred. Was the statement made in jest, or was it made with the clear intention to solicit criminal action?

2. No Communication of the Solicitation

For a solicitation charge to stand, there must be some form of communication. If there was no communication at all—whether verbal, written, or otherwise—the prosecution cannot meet the requirement of solicitation. This defense is effective when the defendant did not directly or indirectly communicate the solicitation to another party.

How the Defense Works:

• • The defense might argue that the statement or action attributed to the defendant was never communicated to another person.
  • If the alleged solicitation took place without any meaningful contact with the person being solicited (e.g., a private thought or a statement made in an unclear context), the defendant may avoid a conviction.

3. False or Mistaken Identity

In some cases, the defendant may be falsely accused of criminal solicitation due to a misunderstanding, mistaken identity, or miscommunication. For example, a person may be accused of soliciting a crime when their words or actions were misinterpreted by the person receiving them.

How the Defense Works:

• • The defense will argue that the defendant did not commit the alleged act of solicitation, either because someone else made the statement or because the statement was taken out of context.
  • This defense can also be used in cases where there is an error in identifying the defendant as the person who allegedly made the solicitation.

4. Withdrawal of Solicitation

In some cases, a defendant may be able to avoid a conviction for criminal solicitation by proving that they attempted to withdraw the solicitation before any further action was taken. In Georgia, withdrawing a solicitation may act as a defense if the person being solicited has not yet committed the crime.

How the Defense Works:

• • The defendant must prove that they took active steps to stop the commission of the crime, such as contacting the person being solicited to cancel the request or inform them that they should not proceed with the crime.
  • A defendant must show that the withdrawal was done before the crime was completed or even attempted.

This defense requires the defendant to demonstrate that they attempted to prevent the solicitation from being acted upon.

5. Coercion or Duress

If the defendant was coerced or forced to solicit a crime under duress (e.g., threats of harm), this can be a defense against criminal solicitation. Duress involves being pressured or intimidated into committing an act that you would not have otherwise done voluntarily.

How the Defense Works:

• • The defendant argues that they were acting under threat or coercion from another party who made it impossible for them to refuse the solicitation.
  • The defense may rely on evidence of threats, intimidation, or fear that caused the defendant to act against their will.

This defense requires the defendant to demonstrate that they were in immediate danger and had no reasonable opportunity to resist or avoid the situation.

6. Insufficient Evidence

A key defense in criminal solicitation cases is the argument that the prosecution has failed to prove its case beyond a reasonable doubt. This might involve challenging the quality of the evidence, the credibility of witnesses, or the sufficiency of the communication that allegedly constituted the solicitation.

How the Defense Works:

• • The defense will argue that the prosecution has not provided enough evidence to establish the defendant’s guilt.
  • If there is a lack of physical evidence, witness testimony, or clear communication between the defendant and the person being solicited, the defense may argue that the case should be dismissed or that the defendant should be acquitted.

In Georgia, as in all criminal cases, the prosecution must prove every element of the crime beyond a reasonable doubt. If the evidence is insufficient or inconsistent, the defendant may be able to avoid conviction.

7. First Amendment Protections

In some cases, a defendant may argue that their communication was protected under the First Amendment, which guarantees the right to free speech. However, this defense is only applicable in limited situations, particularly where the communication did not incite illegal activity or where it was a mere expression of opinion.

How the Defense Works:

• • The defendant argues that the solicitation was an expression of opinion or speech that did not meet the legal criteria for criminal solicitation.
  • This defense typically does not apply if the communication was direct, explicit, and intended to incite criminal behavior.

8. Unreliable Witness Testimony

In some criminal solicitation cases, the primary evidence against the defendant may come from witness testimony. If the witness is unreliable, has a motive to lie, or is inconsistent in their account, this can be used as a defense to challenge the solicitation charge.

How the Defense Works:

• • The defense might argue that the witness’s testimony is not credible or that the witness has a vested interest in fabricating or exaggerating their version of events.
  • This defense can be especially useful if there are contradictions in the witness’s statements or if there is a lack of physical evidence to corroborate their testimony.