INCITEMENT TO CRIME. — This is a specific form of participation by several persons in a crime, more precisely a form of moral participation, that is, carried out through psychological activity. In a broader sense, the term denotes any activity directed toward arousing and strengthening in another’s will a pre-existing criminal purpose (simple incitement), or toward causing such a purpose to arise where it did not previously exist (determination). It is effected in particular through the various forms of mandate, command, and moral coercion. Modern codes, however, including the canonical code, do not distinguish between incitement and determination, and consequently the two forms are legally equivalent.
The principal forms of incitement, to which its various manifestations may be reduced, are: simple exhortation by means of advice, suggestion, prayer, persuasion, urging, etc. (consilium hortativum or nudum); exhortation accompanied by instructions useful for the completion of the offense (consilium instructum, vestitum, cooperativum); and the promise of assistance or aid to be provided after the crime. When the inciting action is not limited to a simple promise, but takes the form of concrete assistance immediately useful for completing the offense, incitement is then combined with co-perpetration and physical complicity. The same occurs in the case of the consilium cooperativum properly so called, that is, when incitement is accompanied by instructions so precise as to constitute effective positive assistance in carrying out the criminal action. The mere consilium doctrinale of one who simply teaches how a crime is committed, on the other hand, is not relevant.
The offense of incitement requires the same conditions that constitute the prerequisites of every form of cooperation: the incitement must effectively determine someone who otherwise would not have made the decision; the inciting activity must precede or coincide with the perpetration of the crime, since after the crime there can only be aiding and abetting and receiving stolen goods; and acts of execution, even incomplete ones, must actually have followed the incitement. Incitement, in fact, is regarded as a form of criminal participation only insofar as the crime has subsequently been completed or attempted.
Unknown to classical Roman law as a form of criminal participation, incitement was considered only in part in subsequent law, principally in the form of the consilium cooperativum (D. 47, 2, 50, 3), never as an independent offense, nor ever with responsibility equivalent to that of the principal perpetrator. Germanic law likewise recognized it only at a very late period, as a partial offense and as an attempt. The relevant doctrine developed through statutory law and especially through canon law, which, given its predominantly ethical and spiritual purposes, necessarily had to take account of every form of moral participation. The equalization of the inciter’s liability with that of the perpetrator is owed to canon law (c. 6 § 1, X, 5, 39).
The Italian Penal Code regards incitement as a punishable form of participation in an offense only when it contributes to causing the offense itself, that is, when it has been accepted and followed by execution. In that case the inciter is subject to the same penalty as the perpetrator, to be increased where the person incited is not punishable (arts. 110, 111, 64). Incitement that is not accepted or, if accepted, is not followed by any result, is not regarded as an offense. Nevertheless, since incitement may indicate the dangerousness both of the inciter and of the person incited, the law grants the judge the power in such a case to apply a security measure (supervised release), limited, for obvious reasons, to the inciter alone when the incitement has not been accepted (art. 115, paras. 2, 3, 4; art. 229).
The principle therefore remains established that incitement alone, as such, is not punishable. Only by way of exception does the Penal Code recognize cases of sterile incitement punished not as a form of participation, but as an independent offense. This is particularly the case with public incitement to crime in general, including the indirect form of apologia for an offense, to disobey laws concerning public order, or to commit offenses against the personality of the State (arts. 414, 415, 303). The same applies to incitement of members of the armed forces to disobedience and indiscipline (art. 266), of a public official to corruption (art. 222), of anyone to contempt and vilification of institutions, laws, or the acts of a public official or a minister of religion (art. 327), or to suicide (art. 580), prostitution (art. 531), the corruption of minors, and practices against procreation (arts. 530, 553).
The CIC does not provide a distinct form of incitement, but considers it under the general category of inducing others to complete the offense (can. 2209 § 3), including not only incitement properly so called, but also determination. Canonists generally identify incitement with the consilium, which in reality is only one of its forms.
In canon law, the inciter’s liability is equal to that of the principal perpetrator if the incitement proved to be the principal efficient cause, without whose concurrence the crime would not have been committed. In that case the inciter, in accordance with the principle that penalties are communicable, is subject to the same penalty as the principal perpetrator (cann. 2209 § 3, 2231). Ineffective incitement is included under the category of attempt, distinct from whatever liability may attach to the perpetrator (can. 2212 § 3). If, on the other hand, the incitement proves to be a secondary cause, limited, that is, to facilitating a purpose already formed which would have taken effect even without its concurrence, the inciter’s liability is lesser and is punished, in the same manner as ineffective cooperation, either by a specific penalty, where one is expressly provided, or by a penalty to be imposed pro prudenti superiorum arbitrio (cann. 2209 § 4, 2231, 2212 §§ 3, 4). An inciter who has participated effectively in the crime is jointly liable for the expenses and compensation for the damages resulting from it (can. 221). Full retraction of the incitement, made in good time and effectively, frees one from all liability; if partial or imperfect in its effectiveness, it diminishes liability but does not eliminate it (can. 2209 § 5).
As regards theological and moral evaluation, it must be borne in mind that incitement, even if ineffective or merely not accepted, creates a moral responsibility in the internal forum against the virtue of charity, more or less serious according to its object, and entails an obligation in conscience to retract it in order to prevent its harmful effects; if, on the other hand, it has proved effective, the sin is against justice, and the inciter is bound in conscience, independently of any act by the judge, to provide joint compensation for the damages caused (v. II).