14.2: ARSON ACT

The criminal act element required for arson is typically setting fire to or burning real or personal property specified in the arson statute (Cal. Penal Code § 451, 2011). This could include buildings, structures, land, and vehicles (Tex. Penal Code § 28.02, 2011). Some states define the criminal act element as “damaging” the specified property by fire or explosives (Ga. Code tit. 16 § 16-7-60, 2011). The Model Penal Code describes the criminal act element as starting a fire or causing an explosion (Model Penal Code § 220.1(1). The type or value of the property the defendant burns or damages can enhance grading. Grading is discussed shortly.

Example of Arson Act

Clark and Manny are bored and decide to light a fire in the woods near their houses. The grass is damp from a recent rain, so the fire does not spread and burns only a small circle of grass. Clark and Manny give up and walk home. Clark and Manny have probably committed the criminal act element required for arson in most jurisdictions. Although a large destructive fire was not set by Clark and Manny, the two did burn or damage real property and start a fire, which satisfies the criminal act requirement in most jurisdictions and under the Model Penal Code.

Arson Intent

The criminal intent element required for arson in many jurisdictions is the general intent or knowingly to commit the criminal act (Ga. Code tit. 16 § 16-7-60). Thus, the defendant only needs the intent to burn or damage property specified in the arson statute; the defendant does not have to intend to burn a specific structure or personal property, even if that is the end result (People v. Atkins, 2011). The Model Penal Code requires starting a fire or causing an explosion “with the purpose of destroying a building or occupied structure of another; or destroying or damaging any property…to collect insurance for such loss” (Model Penal Code § 220.1(1)).

Example of Arson Intent

Review the example with Clark and Manny in the “Example of Arson Act”. Change this example so that Clark and Manny leave the area and a tiny spark from the fire they set begins to ignite. After a few hours, a large and powerful fire starts and burns thousands of acres in the forest. Clark and Manny most likely have the criminal intent element required for arson in many jurisdictions. Although Clark and Manny did not necessarily want to burn thousands of acres of forest land, they did intentionally or knowingly start a fire in the forest, which is all that many modern arson statutes require. Thus, even though Clark and Manny did not intend the end result, Clark and Manny are probably subject to prosecution for and conviction of arson for their conduct.

Arson Attendant Circumstances

In most jurisdictions, arson must burn a specific type of property. Although this can be interpreted as an attendant circumstance, it is also a function of grading. Thus, first-degree arson may focus on arson of a dwelling (Vt. Stat. Ann. tit. 13 § 502, 2011), while second-degree arson focuses on arson of other property (Vt. Stat. Ann. tit 13 § 503, 2011). Many jurisdictions do not require the attendant circumstance that property “belongs to another,” and therefore the defendant can burn his or her own property and still be guilty of arson. However, the defendant must generally burn his or her property with the specific intent or purposely to defraud for the burning to constitute arson (Ga. Code tit. 16 § 16-7-62, 2011). The Model Penal Code requires “destroying or damaging any property, whether his own or another’s, to collect insurance for such loss” (Model Penal Code § 220.1(b)).

Example of a Case Lacking Arson Intent for Burning the Defendant’s Property

Tim decides he wants to get rid of all the reminders of his ex-girlfriend. Tim piles all the photographs, gifts, and clothing items that are connected to his relationship with his ex into his fireplace and burns them. In this scenario, Tim probably does not have the criminal intent element required for arson in most jurisdictions. Although Tim burned or damaged property, the property belongs to Tim, not another. Thus, Tim must burn the property with the specific intent or purposely to defraud—most likely an insurance carrier. Tim burned his own property with only general intent or knowingly, so Tim may not be charged with and convicted of arson in most jurisdictions.

Arson Causation

The criminal act must be the factual and legal cause of arson harm, which in the “Example of Arson Causation” defines. As stated previously, the defendant does not have to intend to burn a specific structure or personal property, even if that is the end result in many jurisdictions. However, there must be a causation analysis in every arson case because arson is a crime that requires a bad result or harm. Thus, the arson harm must be reasonably foreseeable at the time the defendant commits the criminal act with the accompanying criminal intent.

Example of Arson Causation

Review the example with Clark and Manny in the “Example of Arson Intent”. In this example, Clark and Manny try to light a fire in the forest, but the grass is too damp, so they give up and leave the area. Hours later, a spark from their fire ignites, burning thousands of acres. Clark and Manny could be the factual and legal cause of this harm in many jurisdictions. Even though the grass was damp and difficult to burn, a trier of fact could find that it is reasonably foreseeable when lighting a fire in the forest that the fire could turn into a massive and destructive blaze. Thus, Clark and Manny’s act accompanied by the general intent or knowingly to burn caused significant harm, and Clark and Manny may be subject to prosecution for arson in this case.

Arson Harm

The harm element required for arson is burning, charring, or damage to the property specified in the arson statute. Damage could be damage to even a small part (California Criminal Jury Instructions No. 1515, 2011), and in the most extreme cases, even smoke damage without burning or charring is sufficient (Ursulita v. State, 2011). The Model Penal Code only requires starting a fire or causing an explosion with the appropriate criminal intent, regardless of whether damage to real or personal property ensues (Model Penal Code § 220.1(1)). Some states follow the Model Penal Code approach (Tex. Penal Code § 28.02, 2011).

Example of Arson Harm

Review the example with Clark and Manny in the “Example of Arson Act”. In this example, Clark and Manny started a fire in the woods that burned a small circle of dead grass. This damage is probably sufficient to constitute the harm for arson in most jurisdictions. Although the value of the damaged forest land is not excessive, excessive damage is not typically a requirement under modern arson statutes—any damage is enough. Thus, Clark and Manny may be subject to a prosecution for and conviction of this offense in most jurisdictions.

Arson Grading

Arson is typically divided into degrees (Ga. Code tit. 16 § 16-7-60, 2011), or simple and aggravated (Cal. Penal Code § 451.5, 2011). Factors that can elevate grading are the burning or damage of another’s dwelling (Ga. Code tit. 16 § 16-7-60, 2011), bodily injury or death (Connecticut Criminal Jury Instructions § 53a-111, 2011), extensive property damage, or damage to property of high value (Cal. Penal Code § 451.5, 2011). As stated previously, arson is a serious felony that can result in a sentence of life in prison and mandatory registration requirements similar to serious sex offenses (730 ILCS § 10, 2011). Arson is also generally a strike in states that have three strikes statutes (Cal. Penal Code § 1192.7, 2011) and a predicate felony for first-degree felony murder (Cal. Penal Code § 189, 2010). Many jurisdictions grade even simple arson or second or third-degree arson as a felony (Cal. Penal Code § 451, 2011). The Model Penal Code grades arson as a felony of the second degree (Model Penal Code § 220.1).