7.2.5: Wharton’s Rule

California Criminal Law 2026 · LibreTexts

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    A criminal offense that requires two parties cannot be the object of a conspiracy that consists of two parties. This rule is called Wharton’s rule, or the concert of action rule (USLegal, 2011). However, a statute can expressly criminalize a conspiracy to commit any crime, abrogating the rule. Currently, Wharton’s rule can operate as a judicial presumption, to be applied in the absence of legislative intent to the contrary (Ianelli v. U.S., 2011).

    Example of a Case Where Wharton’s Rule Is Inapplicable

    Joanne and Robert conspire with Don, Joanne’s pimp, to engage in prostitution. Joanne and Robert get caught in the act of engaging in prostitution by Edward, a police officer. Wharton’s rule probably does not apply in this case. Although engaging in prostitution requires two parties, the conspiracy to engage in prostitution has three members—Don, Joanne, and Robert. Thus Wharton’s rule is likely inapplicable, and Don, Joanne, and Robert might have committed conspiracy to engage in prostitution. Note that if only Joanne and Robert conspire to engage in prostitution, Wharton’s rule may act as a judicial presumption that they cannot commit conspiracy and the crime it furthers.

    This page titled 7.2.5: Wharton’s Rule was last modified on Wed, 02 Sep 2026 08:35:38 GMT and is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Mark C Fields and Carmyn A. Radetic-Fields.