Wharton’s rule – an agreement by two or more persons to commit a crime cannot be prosecuted as a conspiracy if it was committed mutually, and not involving anyone other than themselves

     This page is continued from Criminal Law Self-Help >>>> Crimes and Corresponding Laws >>>> Crimes Necessarily Committed by Two or More Persons Working Together >>>> Conspiracy:


Wharton’s rule:

1. Criminal law. The doctrine that an agreement by two or more persons to commit a particular crime cannot be prosecuted as a conspiracy if the crime could not be committed except by the actual number of participants involved.  *  Classic examples include dueling and prostitution, crimes that cannot be committed alone.  But if additional people participate, as duelists’ seconds or a prostitute’s pimp, for example, all the actors might be charged with conspiracy.  The doctrine takes its name from the influential criminal law author Francis Wharton (1820-1889). — aka Wharton rule; concert-of action rule. [1]

1. Same as concert of action rule. [2]

concert of action rule:

1. The rule that if one of the elements of a crime is such that is can only be committed by two persons acting together (EXAMPLES: adultery; illicit cohabitation), such mutual action cannot also be a conspiracy.  This principle is also referred to as the Wharton Rule.  [2]

     Excerpt from Iannelli v. U.S., 420 US. 770, 785-86, 95 S.Ct. 1284, 1293-94 (1975):

     “Wharton’s Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity.  The substantive offense therefore presents some of the same threats that the law of conspiracy normally is thought to guard against, and it cannot automatically be assumed that the Legislature intended the conspiracy and the substantive offense to remain as discrete crimes upon consummation of the latter.  Thus, absent legislative intent to the contrary, the Rule supports a presumption that the two merge when the substantive offense is proved. . . .  More important, as the Rule is essentially an aid to the determination of legislative intent, it must defer to a discernible legislative judgment.[1]


Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.


Back to Conspiracy

Back to Crimes Necessarily Committed by Two or More Persons Working Together

Back to Crimes and Corresponding Laws

Back to Criminal Law Self-Help

Home Page

Like this website?

Please Support Our Fundraiser

or donate via PayPal:


Disclaimer: Wild Willpower does not condone the actions of Maximilian Robespierre, however the above quote is excellent!

This website is being broadcast for First Amendment purposes courtesy of

Question(s)?  Suggestion(s)?
We look forward to hearing from you!