When does solicitation constitute a substantial step for criminal attempt? State v. Arave Explained

In State v. Arave, the Utah Supreme Court addressed the critical distinction between criminal solicitation and attempt, clarifying when conduct crosses the line from one offense to the other. The case arose when Lonnie Arave offered to pay an eleven-year-old boy $20 to allow him to perform oral sex, leading to his conviction for attempted sodomy on a child.

The key legal issues centered on whether Arave’s conduct constituted mere solicitation or rose to the level of criminal attempt, and whether the solicitation statute could apply to victims who lack capacity to consent. Arave argued that his actions amounted only to solicitation, a lesser offense than attempt, and that the two statutes violated the Shondel doctrine by criminalizing identical conduct with different penalties.

The court’s analysis revealed important distinctions between these crimes. First, the court clarified that Utah’s solicitation statute encompasses not only solicitation of third-party perpetrators but also solicitation of victims who lack capacity to consent. The statute’s language requiring the solicited person to “engage in specific conduct that would be a felony” or “be a party to the commission of a felony” supports this interpretation, particularly given the express provision that it’s no defense if the person solicited “is not criminally responsible for the felony solicited.”

However, the court’s most significant holding addressed the substantial step requirement for criminal attempt. The court emphasized that “solicitation alone cannot constitute a substantial step toward the commission of a crime.” To hold otherwise would “obviate the crime of solicitation and introduce Shondel concerns” by allowing prosecutors to charge attempt whenever solicitation occurred. The court noted that attempt requires “something more than mere preparation” – a tangible step that “transcends intent, yet fails to culminate in its planned accomplishment.”

The court found that Arave’s conduct – approaching the victim on his bicycle, blocking his path, and making the solicitation – did not rise beyond typical solicitation behavior. While Arave may have positioned himself in the victim’s path, this was “no different from a typical solicitation” since any face-to-face solicitor would necessarily confront the person being solicited. The court reversed the conviction, concluding there was no credible evidence of a substantial step beyond mere solicitation.