Concept
Statutory Exclusions
Model Penal Code liability for conduct of another
Statutory Exclusions
Subsection (3) defines an accomplice by purpose and conduct, and its language is broad: anyone who solicits, aids, agrees to aid, or attempts to aid with the purpose of promoting or facilitating an offense qualifies. Read alone, that breadth would reach some participants whom the legislature never meant to punish. Subsection (6) answers with a set of built-in statutory exclusions. Its lead-in provides that, unless the Code or the law defining the offense provides otherwise, a person is not an accomplice in an offense committed by another if one of the listed situations applies.1 The list has three entries. The person is the victim of the offense, or the offense is so defined that the person's conduct is inevitably incident to its commission, or the person terminates complicity before the offense in one of two specified ways.2 The first two are taken up in the sections below, and termination of complicity follows in its own section.
The exclusions exist because offenses are often defined to protect a particular class of people or to punish only one side of a transaction. Each exclusion has its own reason. A victim is the person the offense was written to protect, so treating that person as an accomplice would turn the statute against the very person it was meant to benefit, merely because the victim cooperated or went along with the wrong. A person whose conduct is inevitably incident to the offense presents a different problem. If the offense cannot be committed without that person's participation, the legislature wrote the definition knowing that participation would occur, and its decision to punish only one side of the transaction was a choice about where liability should fall. Applying the general accomplice provision to the other side would punish conduct the legislature had already weighed when it drew the offense, and would do so without any legislative direction to that effect.
The opening clause of subsection (6) keeps the exclusions subordinate to the legislature that defined the offense. Its words, "unless otherwise provided by the Code or by the law defining the offense," mean that each exclusion works as a default for cases where the defining statute is silent about the other participant.3 Where the defining law speaks, it controls, because the body that decided whom the offense should reach is better placed than a general rule to say whether a victim or a necessary counterpart is also to be punished. The consequence is that the exclusions cannot be applied without reading the statute that defines the offense.
On an exam stem, the error is to apply an exclusion as though it were absolute. A victim or a necessary counterpart is excluded only if the defining law is silent or points the same way, so the analysis starts with the text of the offense. If that text contains no provision about the other participant, the exclusion governs, and the defendant is not an accomplice however clearly the defendant helped. If the text addresses the participant, the exclusion yields to it.
Victims of the Offense
The first of the exclusions in subsection (6) removes the person the offense was written to protect. Under § 2.06(6)(a), a person is not an accomplice in an offense committed by another if that person is a victim of the offense.5 The Code needs a specific rule here because the accomplice definition in subsection (3) describes conduct that a victim can easily perform. A person who hands over money to an extortionist, who goes along with an adult's overtures, or who agrees to the transaction has, read literally, helped or agreed to help the offender complete the offense. Without a targeted exclusion, the general accomplice provision would sweep in the people the offense exists to shield.
The victim exclusion has two separate reasons behind it. The first concerns what the offense definition is for. Many offenses exist to protect the person harmed, so a statute that punishes an adult for specified conduct with a minor aims to shield minors, and treating the minor as an accomplice would turn the statute against the person it protects merely because the minor took part. Legislatures have enacted laws of exactly this protective kind, such as prohibitions on using minors to produce sexual material.6 The second reason concerns incentives. If a victim's participation exposed the victim to conviction as an accomplice, the offender could hold that exposure over the victim: report me and you will be charged too. Victims would then stay silent, and the offender would profit from the silence the exposure produced. Excluding the victim removes the threat at its source, so the person harmed can come forward without risking conviction.
The same logic explains why the victim's willingness does not change the result. Some offenses disregard the victim's consent altogether, because the law treats certain people as unable to give meaningful agreement to the conduct. In those cases the victim may have cooperated eagerly or even proposed the conduct, and the victim's behavior may resemble soliciting or agreeing to aid in every outward respect. The exclusion does not turn on how enthusiastic the participation was. It turns on whether the person is a victim of the offense charged, and if so, the person cannot be an accomplice in that offense.7
The exclusion shelters only the person the offense victimizes, and everyone else who participates stays within subsection (3). That limit follows from the reasons just given, because the protective design of the offense gives no cover to a participant who is outside the protected group. A person who helps the offender with the purpose of facilitating the offense is judged under the ordinary accomplice provision.
The two scenes differ in a single fact, which is who the participant is in relation to the offense. The minor and Dunn both helped bring the encounter about, but only the minor is the person the statute protects. As with the other exclusions, the opening clause of subsection (6) makes this a default that applies when the law defining the offense is silent. A legislature that writes an offense to reach the protected person as well has said so in the defining law, and that text controls over the general rule.
Students miss this issue by reading the victim's willingness as proof of accomplice status, reasoning that an eager participant has plainly aided the offense. The analysis is better run as a short sequence that puts the status question before the participation question:
Step two does the real work. A stem that stresses the victim's enthusiasm, initiative, or agreement is testing whether the exclusion survives that evidence, and it does.
Conduct Inevitably Incident to the Offense
Some offenses cannot be committed by one person acting alone. A sale needs a buyer, a bribe needs a recipient, and a wager needs someone to take the other side. The Code deals with these offenses in § 2.06(6)(b), which provides that a person is not an accomplice if the offense is so defined that his conduct is inevitably incident to its commission.11 The phrase inevitably incident means unavoidably bound up with the offense, so the exclusion covers conduct that the offense, as the legislature wrote it, cannot happen without. The exclusion is needed because subsection (3) would otherwise capture the necessary participant. A buyer who asks for the product, agrees on a price, and takes delivery has agreed to aid the transaction, and the buyer usually wants it to succeed. The purpose requirement therefore does not screen the buyer out, and the exclusion has to do that work.
The reason for the exclusion lies in how legislatures draft. A legislature that defines an offense as selling already knows that every sale has a buyer. When it names only the seller, it has made a choice about where liability falls, and that choice is part of the definition. Treating the buyer as the seller's accomplice would undo the choice, because the general accomplice provision would extend the offense to a person the defining statute left out, and it would do so on the strength of conduct the definition itself guaranteed. As with the other exclusions in subsection (6), this one is a default that yields when the law defining the offense provides otherwise, so a statute that expressly punishes buyers controls over it.
The exclusion attaches to conduct. A participant keeps its protection only as long as he does what the definition necessarily requires of his role, and a single added act can take him outside it.
The two scenes involve the same defendant and the same statute. The only difference is whether the defendant confined himself to what the definition necessarily requires. That difference tracks the reason for the exclusion, since the legislature's decision to omit the buyer concerned the buyer's role in a sale. It did not concern the separate act of widening the seller's business, which the definition neither requires nor anticipates.
Conspiracy law reasons in a similar way. Under Wharton's Rule, when an offense necessarily requires two participants and no more than two are alleged to have agreed to commit it, a conspiracy charge will not lie, but if a third person joins so as to enlarge the scope of the agreement, all three may be charged.14 In Iannelli v. United States the Supreme Court rejected the traditional treatment of the rule as a substantive limit on conspiracy and held that it operates as a judicial presumption about legislative intent, which gives way when the legislature shows a contrary intent.15 Wharton's Rule governs conspiracy and § 2.06(6)(b) governs accomplice liability, so the two are separate doctrines. They share a structure: the necessary pair is not punished through the general doctrine, a participant beyond the necessary role is outside the protection, and the defining legislation can displace the default.
On an exam stem, students lose this issue by treating anything the participant does beyond the necessary role as protected because the participant is a buyer, a recipient, or some other required counterpart. The analysis runs more reliably as a comparison of two things, the offense definition and the defendant's conduct:
Step two does the real work. A stem that has the participant do something beyond the transaction itself, such as recruiting, financing, or supplying means, is testing whether the exclusion stops at the necessary role, and it does.