Withdrawal and Renunciation

Withdrawal and Renunciation

The earlier sections established that solicitation is complete at the moment the solicitor, with the required intent, makes the request, and they then followed the request through each response the person asked might give. A different kind of later event remains, one that comes from the solicitor instead of the listener: the solicitor has a change of heart. Withdrawal means taking the request back, and renunciation means giving up the criminal purpose that prompted it. Whether either one matters depends on which body of law supplies the rule. At common law, once the defendant has made a solicitation, later withdrawal or renunciation ordinarily is no defense.¹ The Model Penal Code, in its solicitation section, makes renunciation an affirmative defense, meaning a defense the defendant must raise and support. It grants the defense only when the solicitor, after soliciting, persuaded the other person not to commit the crime or otherwise prevented it, under circumstances manifesting a complete and voluntary renunciation of criminal purpose.²

The two rules answer one underlying tension from opposite directions. The common-law answer follows from the timing already established: if the wrong consists of a request made with the intent that a crime be committed, the wrong exists when the words are spoken, and nothing the solicitor does afterward can make the request unmade. The Model Penal Code answer responds to an incentive problem. After the request, the solicitor is often the person best placed to stop the crime, because the person asked may be acting on the solicitor's own word, and a rule that gives no credit for stopping it leaves the solicitor with no reason to try. A defense that rewarded every change of heart would create a problem of its own, since a solicitor who merely says to forget it after the request has been received has left the danger exactly where it was. The Code therefore ties its defense to results and to motive. The solicitor must actually persuade the other person or otherwise prevent the crime, which protects the intended victim, and the renunciation must be complete and voluntary, which screens out a solicitor who stops only because the plan has become inconvenient and who means to try again.

On a fact pattern, the first move is to identify which system governs, because the same call cancelling the request produces guilt at common law and a possible defense under the Code. The second move, under the Code, is to ask whether the solicitor's change of heart actually produced a result, either a persuaded listener or a prevented crime. The usual error is treating a mere change of heart as a defense, which ordinarily fails at common law and fails under the Code unless the solicitor persuades the other person or prevents the crime. The next two sections take the rules in that order, beginning with the common-law rule and the logic that supports it.

Common Law Rule

At common law, once the defendant has made a solicitation, a later withdrawal or renunciation ordinarily is no defense to the charge.³ Renunciation means a complete and voluntary abandonment of criminal purpose before the crime occurs, and it is the change of heart a solicitor would point to after the fact.⁴ The rule follows directly from the timing already established: solicitation is complete the moment the solicitor, acting with the required intent, makes the request, and nothing is required of the person asked.⁵ Every element of the offense is therefore in place when the words are spoken. A defense built on later events asks the law to subtract an element that already exists, and a telephone call the next day may show regret without making the request unmade.

The reason for the rule becomes clearer through a comparison the law has already accepted. A request that the other person rejects on the spot is punishable even though nothing follows from it.⁶ Now compare a request that the other person accepts and that the solicitor calls off the next day. The second request came closer to the harm the solicitor wanted, because the person asked had agreed and might have begun to act. If the law punishes the request that went nowhere, excusing the request that went further would reverse the order of seriousness, and that inversion is the main argument against allowing a renunciation defense.⁷

A second reason concerns what the request does to the listener. By asking, the solicitor has placed the idea of a crime in another person's mind, and a later retraction cannot reliably take it back out. The listener may reconsider or may not, and that choice is no longer the solicitor's to control.⁸ The solicitor has therefore already created the danger the offense targets, and a retraction hands that danger to someone else instead of removing it.

Two cautions keep the rule in proportion. The first is that the rule is stated as ordinarily no defense, because the question apparently has never been decided one way or the other by an appellate court, so the common-law position is a traditional default and not a line of holdings.⁹ The second is that the opposing argument has real force. A solicitor who renounces may have shown that no corrective process is needed, and a defense gives solicitors a reason to stop crimes they set in motion.¹⁰ Several modern recodifications, along with Model Penal Code § 5.02(3), therefore recognize voluntary renunciation as a defense, a departure the next section takes up.¹¹

The fact that separates the two situations is the act. Thought alone is not a crime, and the speaking of words is the act that most often completes solicitation.¹² A defendant who never spoke has committed no act to which regret could attach, while a defendant who spoke had committed the whole offense before any regret appeared.

On an exam stem, the order of events decides the answer. The first question is whether the request was ever made with the required intent. If it was not, there is no offense to withdraw from, and if it was, a later countermand, cancelled plan, or change of heart leaves the solicitor guilty at common law. The trap is treating a cancelling phone call as a defense, which confuses regret with the absence of an element. A jurisdiction that follows the Model Penal Code is a separate question, because there renunciation helps only when it persuades the other person or prevents the crime.

Model Penal Code Defense

The Model Penal Code answers the solicitor who thinks better of it differently from the common-law default. Section 5.02(3) makes it an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded that person not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of the actor's criminal purpose.¹⁴ The label affirmative defense means the solicitor must raise the defense and bring forward the facts that support it, so the prosecution proves the solicitation and the solicitor proves the renunciation. The wording also shows that the defense demands action. A solicitor who simply feels differently the next morning has not persuaded anyone and has not prevented anything, and the text asks for one or the other. The defense therefore has two parts, a result and a motive, and each exists for its own reason.

The result requirement comes first. After a request is made, the solicitor is often the person best placed to stop the crime, since the listener may be acting on the solicitor's own word and the intended victim may not know the danger exists. A defense that rewarded a private change of mind would give the solicitor no reason to do anything, and the victim would be no safer. A defense that rewards results gives the solicitor a reason to act, whether by talking the listener out of the plan or by warning the victim or the authorities, because only a crime that does not happen earns the immunity. The policy argument for any renunciation defense runs along these lines: solicitors will be encouraged to prevent the crimes they solicited if success lets them escape liability altogether.¹⁵ The Code's attempt provision is built the same way, offering a renunciation defense to induce people who have already passed the threshold of liability to abandon their course.¹⁶ The words otherwise prevented matter because persuasion is not the only route. A solicitor who gets word to the police in time to stop the crime has prevented it, and the parallel rule for abandonment by an accomplice treats a timely denunciation to the police as sufficient.¹⁷ Because the text asks for a result, a solicitor who tries and fails to stop the listener has not satisfied its terms.

The second part asks why the solicitor stopped. The solicitation section does not define complete and voluntary, but the same phrase governs the Code's attempt defense, and the explanation given there carries over by analogy. Renunciation in this sense means a complete and voluntary abandonment of criminal purpose before the crime is committed.¹⁸ Under the attempt version, the requirement is not met when the defendant has simply postponed the crime, or has given it up because of a new development that increased the chance of being caught.¹⁹ Carried into solicitation, complete means the solicitor has given up the criminal objective itself, not merely this plan or this date, and voluntary means the decision comes from the solicitor's own change of purpose and not from fear of detection. The reason follows from the premise of the defense, which is that a renouncing solicitor has shown that the corrective process of the criminal law is not needed.²⁰ A solicitor who still wants the victim dead and delays only because police are nearby has shown nothing of the kind, and can be expected to resume when the risk passes. Without the qualifier, the defense would reward a tactical retreat: ask, back off when threatened, and claim immunity.

The pair differs in two linked facts, whether the solicitor's conduct produced the result the text demands and why the solicitor acted. A third variation removes action altogether.

The consequence for A does not stop at solicitation, since a solicitor whose request leads the other person to commit the crime is generally liable as an accomplice for the completed offense.²¹

On an exam stem, the work is to separate what the solicitor felt from what the solicitor did. The facts to scan for are a call or visit that turned the listener away, a warning to the victim or the police, and any hint that the solicitor stopped out of fear or meant only to wait. The usual error is treating a retreat driven by fear of detection as renunciation, because the Code asks whether the solicitor gave up the criminal purpose, and a solicitor who delays for safety has kept it.

The defense also marks the sharpest difference between the two systems. A request followed by a call cancelling the plan leaves the solicitor guilty at common law, where the offense was complete at the request, while under the Code the same call can be a defense if it persuaded the listener and the renunciation was complete and voluntary. The Code's conspiracy section follows the same design, requiring that a renouncing party thwart the conspiracy's success, so the pattern across its inchoate crimes is that the defense rewards protective action and not regret.