Introduction

Arson and Related Fire Offenses

Introduction

At common law, arson is the malicious burning of the dwelling of another, and the offense is made up of four elements: malice, a burning, of a dwelling, that another uses as a dwelling.¹ Later sections take each element in turn, so the point here is how the four fit together. The definition is built around the security of habitation: the offense protects the people who live in a structure and their ability to sleep in it safely.² Ownership of the structure never enters the definition. That makes arson a different kind of crime from vandalism or theft, which protect an owner's interest in property.

The habitation focus explains why the law singles out fire. Smashing a window or a piece of furniture damages only the thing struck, but a fire spreads past whatever the actor had in mind, and it threatens sleeping occupants who have no chance to react and neighbors who share a wall or a lawn. Once the protected interest is the safety of those who live in the structure, many of the rules that follow become predictable. A person who burns the home in which he lives has endangered no other person's habitation, which is why that conduct usually fell outside common law arson. The same logic points the other way for an owner who burns a house that someone else occupies, since the offense follows who dwells in the structure and not who holds title.

This chapter runs on two tracks. The first is the four-element common law offense, together with its two neighbors, the misdemeanor of burning one's own dwelling and the question of burning for insurance. The second is the Model Penal Code, which drops the focus on habitation and defines arson by purpose: starting a fire or causing an explosion with the purpose of destroying a building or occupied structure of another, or of destroying or damaging any property to collect insurance.³ The two tracks must be kept apart because modern statutes sometimes label their own offenses "arson" without defining the word, which adopts the common law definition by reference, while other statutes follow the Model Penal Code's purpose-based approach.⁴ The first task on any fact pattern is therefore to decide which definition governs. The next section begins with the common law track and the four elements together.