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Criminal Law • Preliminary Crimes
CRIMLAW#063
Legal Definition
Under the Wharton Rule, if a crime requires multiple parties, then a conspiracy requires at least one additional person than the crime requires.
Plain English Explanation
The crime of "conspiracy" doesn't exist to invent a new way to punish criminals, or a way to add more punishment to their crimes. It exists to describe a unique, distinct criminal behavior that occurs when multiple people come together in order to commit a crime. For example, an individual is completely capable of robbing a bank, or that individual could conspire with others in order to increase the sophistication or probability of success while committing the robbery.
However, some crimes are only possible when there are two or more actors. For example, adultery requires two or more married people to have sex with one another; masturbatory adultery isn't a thing. Thus, if someone were charged with adultery, it wouldn't be fair to also charge them with conspiracy since they discussed, planned, and executed their crime with another person.
Thus, under Wharton's Rule, if a crime requires a specific number of people in order to be committed, then conspiracy only applies when you have at least one more person than is required under the law.
However, some crimes are only possible when there are two or more actors. For example, adultery requires two or more married people to have sex with one another; masturbatory adultery isn't a thing. Thus, if someone were charged with adultery, it wouldn't be fair to also charge them with conspiracy since they discussed, planned, and executed their crime with another person.
Thus, under Wharton's Rule, if a crime requires a specific number of people in order to be committed, then conspiracy only applies when you have at least one more person than is required under the law.
Hypothetical
Hypo 1: Bob challenges Sam to shoot a random person with a gun. Sam accepts. They plan out when and where the shooting will take place. On the day Sam aims at his victim, Bob and Sam are arrested and charged with conspiracy. Result: Bob and Sam are guilty of conspiracy to murder.
Hypo 2: Bob challenges Sam to a duel. Sam accepts. They plan out when and where the shooting will take place. On the day of the duel, police arrest Bob and Sam and charge them with conspiracy. Result: Duels are crimes that require two people to commit the offense (otherwise it's not really a duel, is it?). Thus, even though Bob and Sam did technically plan and conspire to commit a crime, under Wharton's Rule, they cannot be charged with conspiracy.
Hypo 3: Bob challenges Sam to a duel. They need to find a place that is quiet and away from authorities, so they ask Amy to help plan and arrange everything. Amy agrees and finds them a park that no one usually visits. On the day of the duel, police happen to walking through the park and arrest Bob and Sam. Bob, Sam, and Amy are charged with conspiracy. Result: Duels are crimes that require two people to commit the offense. Here, Bob and Sam enlisted Amy to assist them in committing their crime, and Amy did help. Thus, Wharton's Rule does not apply since more than the required number of people conspired to commit this crime.
Hypo 2: Bob challenges Sam to a duel. Sam accepts. They plan out when and where the shooting will take place. On the day of the duel, police arrest Bob and Sam and charge them with conspiracy. Result: Duels are crimes that require two people to commit the offense (otherwise it's not really a duel, is it?). Thus, even though Bob and Sam did technically plan and conspire to commit a crime, under Wharton's Rule, they cannot be charged with conspiracy.
Hypo 3: Bob challenges Sam to a duel. They need to find a place that is quiet and away from authorities, so they ask Amy to help plan and arrange everything. Amy agrees and finds them a park that no one usually visits. On the day of the duel, police happen to walking through the park and arrest Bob and Sam. Bob, Sam, and Amy are charged with conspiracy. Result: Duels are crimes that require two people to commit the offense. Here, Bob and Sam enlisted Amy to assist them in committing their crime, and Amy did help. Thus, Wharton's Rule does not apply since more than the required number of people conspired to commit this crime.
Related Concepts
Does merger exist for conspiracy related crimes?
How can a participant of a conspiracy effectively withdraw?
How does factual impossibility affect attempt?
How does factual impossibility affect conspiracy?
How does legal impossibility affect attempt?
How does legal impossibility affect conspiracy?
In assessing the crime of attempt, what is merger?
In assessing the crime of solicitation, what is merger?
Under conspiracy, what constitutes an agreement?
What is attempt?
What is conspiracy?
What is solicitation?
What is the liability for co-conspirators' crimes?
What level of preparation is required to commit an attempt?
What type of intent is required for attempt?
