MBE Rules · Criminal Law
Wharton's Rule
Wharton's Rule
The rule
Where a crime by definition requires two participants (dueling, bigamy, incest), an agreement between only the necessary parties cannot be a conspiracy absent legislative intent to the contrary.
In plain English
Wharton's Rule states that if a crime inherently requires two people to commit it, like dueling or bigamy, then those two individuals cannot be charged with conspiracy to commit that crime. This is because the agreement between them is already part of the crime itself, unless the legislature has specified otherwise.
Worked example
Alice and Bob agree to engage in a duel, which is a crime that requires two participants. Since their agreement is essential to the crime of dueling, they cannot be charged with conspiracy to commit that crime. Therefore, they are only liable for the act of dueling itself.
Memory hook
Two's company, but not a conspiracy under Wharton's Rule!
The trap
Exams may present scenarios where students mistakenly believe a conspiracy charge can apply even when the crime requires two participants, overlooking the specifics of Wharton's Rule.
How examiners test it
Questions often involve fact patterns with two parties committing a crime that inherently requires both, testing the candidate's understanding of when conspiracy charges are appropriate.
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