Common Law Arson:
At common law, arson is defined as the malicious burning of the dwelling of another. Please note that the definitions of "dwelling" and "of another" are the same as they are in the context of burglary.
In order to be convicted of arson, a defendant must have actually caused some damage to a dwelling, using fire. The damage does not have to be serious or extensive, but some part of the dwelling must have been charred by the flames. Scorching or discoloration by heat or smoke is not enough for an arson conviction. Further, damage that is the result of an explosion is also not enough to sustain an arson conviction. However, if the explosion causes a fire which, in turn, causes some damage to a dwelling, the requirement of a "burning" for arson purposes has been satisfied.
The mens rea required for arson is malice. Please understand that this does not mean that the defendant did not like or wanted to harm the victim. What malice means in this context is that the defendant either intended to burn the dwelling, knew that because of his or her actions the dwelling would burn, or that the defendant intentionally created a fire hazard that threatened the dwelling. Because of this requirement of malice, if a defendant burns the dwelling of another through an act of negligence, he cannot be convicted of arson. See
However, even though a defendant cannot be convicted of arson for burning the dwelling of another through an act of negligence, if a person sets fire to his own dwelling and, by doing so, creates a high risk that someone else’s dwelling will also catch fire, and the other person’s dwelling actually does catch fire, the defendant can be convicted of arson. For example:
Fred lives in an apartment building that contains forty other apartments. Fred has been in a deep depression since Wilma, his fiancée of a year and half, broke off their engagement. One night, in a fit of despair, Fred sets fire to his apartment. Unfortunately, the fire spreads rapidly and it spreads into the neighboring apartment owned by Barney. In this case, even though Fred did not intentionally burn Barney’s apartment, he can be convicted of arson because, by setting fire to his own dwelling, he created a high risk that someone else’s dwelling would burn and, in fact, someone else’s dwelling did burn.
Modern statutes have expanded the crime of arson from the original common law elements.
First, under modern statutes, the defendant can be convicted for arson for burning a structure other than a dwelling. Further, the structure that the defendant burns does not necessarily have to belong to someone else. Because of this, under modern statutes, a defendant can be convicted of arson for burning a structure that he or she owns. It should be noted, however, that although a defendant can be convicted of arson for burning structures that he or she owns, liability is limited in this situation to cases in which the defendant was or should have been aware that his or her actions created a risk of danger to other people. See
Fred has a house on an island that he owns privately. There are no other houses or people on the island other than Fred and his house. If Fred burns his house down he cannot be convicted of arson. Even if there are other homes on the island and Fred burns his home but he justifiably believes that no risk to the other homes or people on the island will be created by his actions, he is also not guilty of arson.
Further, under modern statutes, actual "burning" of any actual material is not required to sustain a conviction. As long as the defendant started a fire with the intent of damaging or destroying the structure that he is setting fire to, he can be convicted of arson even if no part of the structure is damaged or charred at all. Additionally, many modern statutes have expanded the elements of arson to include damage done by explosions, even if no actual fire is involved.
A few jurisdictions also allow for convictions in situations where the defendant burns someone else’s personal property (as opposed to real property, such as a house). Although, arson involving only personal property usually results in a less severe penalty than does the burning of real property.
Finally, modern statutes have made the burning of one's own property with the intent to defraud an insurance company a separate crime related to arson. For example:
Fred owns a home on an island that he owns privately. If Fred decides to burn his home, he will not be convicted of arson even under modern statutes. However, if Fred burns the home with the intent of defrauding the insurance company that has insured his home, he can be convicted of burning of property with the intent of defrauding the insurance company in many jurisdictions, but not of arson.
At common law arson is a felony and it remains so under modern statutes.