INCITEMENT TO CRIME. - It is a specific form of the concurrence of several persons in a crime, more precisely a form of moral concurrence or participation, that is, carried out through psychic activity. In a broader sense it is said of any activity directed at arousing and strengthening in another's will a pre-existing criminal purpose (simple instigation), or at causing it to arise where it did not previously exist (determination). It is brought about in particular through the sub-species of mandate, command and moral coercion. Modern codes, however, including the canonical one, do not distinguish between instigation and determination, so that the two forms are penally equivalent.
The principal forms of instigation, under which its various manifestations can be brought, are: simple arousal by means of advice, suggestion, entreaty, persuasion, exhortation, etc. (consilium hortativum or nudum); arousal accompanied by instructions useful for the commission of the crime (consilium instructum, vestitum, cooperativum); the promise of assistance or help to be given after the crime. When the instigating action is not limited to a simple promise, but is expressed in concrete help immediately useful for the commission of the crime, then the instigation becomes complicated with co-perpetration and physical complicity. The same occurs when it is a question of the consilium cooperativum properly so called, that is, when the instigation is accompanied by instructions so precise as to amount to an effective positive help toward the accomplishment of the criminal act. On the other hand, the simple consilium doctrinale of one who merely teaches how the crime is committed is not relevant.
For the crime of instigation there are required those same conditions that are the presuppositions of every cooperation: that the instigation effectively determines one who would otherwise not have made up his mind; that the instigating activity be prior to or concomitant with the perpetration of the crime, since, after the crime, there can only be aiding and receiving; that acts of execution, even incomplete, actually followed the instigation. Instigation, in fact, is considered a form of criminal participation only insofar as the crime was subsequently consummated or attempted.
Unknown in classical Roman law as a form of criminal participation, instigation was considered only in part in later law, predominantly in the form of the consilium cooperativum (D. 47, 2, 50, 3), never as a crime in itself, nor ever with liability equivalent to that of the principal executor. Germanic law too considered it very late, as a partial crime and as an attempt. The relevant doctrine developed through statutory law and especially through canon law, which, given its predominantly ethical and spiritual aims, could not fail to consider every form of moral concurrence. It is to canon law that we owe the equating of the imputability of the instigator with that of the executor (c. 6 § 1, X, 5, 39).
The Italian penal code considers instigation as a punishable form of concurrence in the crime only when it contributes to bringing about the crime itself, that is, when it has been accepted and followed by execution. In that case the instigator is subject to the same penalty as the executor, to be aggravated if the person instigated is a non-punishable subject (arts. 110, 111, 64). Instigation not accepted or, if accepted, not followed by effect, is not considered a crime. Nevertheless, since instigation can be an indication of the dangerousness both of the instigator and of the instigated, the law confers on the judge the power to apply, in such a case, a security measure (supervised liberty), limited, for obvious reasons, to the instigator alone, when the instigation has not been accepted (art. 115, final paragraphs 2, 3, 4; art. 229).
There remains therefore established the principle of the non-punishability of instigation alone as such. Only by way of exception does the penal code recognize cases of sterile instigation punished not as a form of concurrence, but as a crime in itself. Such is the case, in particular, of public instigation to commit crimes in general, even in the indirect form of the apologia of crime, to disobey the laws of public order or to commit crimes against the personality of the State (arts. 414, 415, 303). Such is also the case of instigation of soldiers to disobedience and insubordination (art. 266), of a public official to corruption (art. 222), of anyone to contempt and vilification of the institutions, the laws or the acts of a public official or of a minister of worship (art. 327), or to suicide (art. 580), to prostitution (art. 531), to the corruption of minors and to practices against procreation (arts. 530, 553).
The CIC does not offer a distinct figure of instigation, but considers it under the generic figure of the inducement of others to the commission of the crime (can. 2209 § 3), including in it not only instigation properly so called, but also determination. Canonists in general identify instigation with the consilium, which, in reality, is only one form of it.
Canonically the imputability of the instigator is equal to that of the principal executor, if the instigation proved to be the principal efficient cause without whose concurrence the crime would not have been committed. In that case the instigator, in deference to the principle of the communicability of the penalty, is liable to the same penalty as the principal executor (cann. 2209 § 3, 2231). Ineffective instigation is brought under the figure of attempt, distinct from the imputability that may belong to the executor (can. 2212 § 3). If, moreover, the instigation proves to be a secondary cause, that is, limited to facilitating an already formed purpose that would have taken effect even without its concurrence, the imputability of the instigator is lesser and is punished, in the same manner as ineffective cooperation, either with a specific penalty, when this is expressly provided for, or with a penalty to be imposed pro prudenti superiorum arbitrio (cann. 2209 § 4, 2231, 2212 §§ 3, 4). The instigator who has effectively concurred in the crime is liable in solidum for the expenses and for the compensation of the damages that have resulted from it (can. 221). The full retraction of the instigation made in good time and in an effective manner frees from all imputability; if partial or imperfect in its efficacy, it diminishes it, but does not remove it (can. 2209 § 5).
As regards the theological-moral evaluation, it must be borne in mind that instigation, even if ineffective or simply not accepted, creates a moral responsibility in the internal forum against the virtue of charity, more or less grave in proportion to its object, and entails the obligation in conscience of retraction in order to prevent its harmful effects; if, moreover, it has proved effective, the sin is against justice and the instigator is obliged in conscience, independently of any act of the judge, to compensation in solidum for the damages caused (v. COOPERAZIONE, II).
Bibliography5 works
Zaccaria da San Mauro