Legal Definitions - Wharton's rule

Wharton's Rule is a legal doctrine in criminal law that addresses situations where a crime, by its very nature, requires the participation of a specific number of people to be committed. The rule states that if an agreement to commit such a crime involves only the minimum number of participants necessary for the crime itself, those individuals generally cannot be charged with a separate crime of conspiracy in addition to the substantive offense.

The underlying idea is that the "agreement" or "concerted action" is an inherent and essential part of the crime itself. Therefore, the law presumes that the legislature did not intend to punish the agreement twice—once as the substantive crime and again as a conspiracy—unless there is clear legislative intent to do so. However, this rule has an important exception: if an additional person participates, thereby expanding the scope of the agreement beyond the minimum required for the substantive crime, then all involved parties can be charged with conspiracy.

Here are some examples to illustrate Wharton's Rule:

• Example 1: Bribery

  • Application of the Rule: Imagine a city council member agrees to accept a cash payment from a real estate developer in exchange for voting to approve a controversial zoning change. The crime of bribery inherently requires two parties: the person offering the bribe and the person accepting it. Under Wharton's Rule, if only these two individuals are involved in the agreement, they typically cannot be charged with both the crime of bribery and a separate charge of conspiracy to commit bribery. The agreement is considered an integral part of the bribery offense itself.
  • Application of the Exception: If, however, the city council member and the developer also involve a third person—such as a political consultant who helps orchestrate the illegal payment scheme and recruits other council members to vote similarly—then all three individuals could be charged with conspiracy. The consultant's involvement expands the criminal enterprise beyond the simple two-person transaction required for a basic bribery offense.

• Example 2: Illegal Gambling Operation

  • Application of the Rule: Consider a scenario where a gambler places a bet with an illegal bookmaker, and they both agree on the terms of the wager. The act of illegal gambling, in this specific context, requires both the person placing the bet and the person accepting it. Wharton's Rule would suggest that these two individuals cannot be separately charged with conspiracy to commit illegal gambling, as their agreement is intrinsic to the gambling offense itself.
  • Application of the Exception: If the bookmaker and the gambler then recruit a third individual to act as a "runner," collecting money from multiple other bettors and expanding the illegal operation across a wider network, then all three individuals could be charged with conspiracy. The runner's participation enlarges the scope of the criminal agreement beyond the essential two-person transaction.