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Criminal Law: The Crime of Arson

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The Crime of Arson

David Berkowitz, the infamous serial killer known as the “Son of Sam,” terrorized New York City during the summer of 1976. But very few people know that from 1974 to 1977, he set approximately 500 fires a year and then reported some of them to various fire officials. The police eventually caught Berkowitz and discovered a notebook he kept detailing the specifics of each fire that he started. While certainly not as serious as murder, the crime of arson is considered a serious felony.

            In this presentation, we will discuss the crime of arson. We will look at the elements of the crime, the difference between arson and reckless burning, penalties for committing arson and how insurance companies play a key role in preventing arson.

Elements of Arson

            Under the common law and several state statues, a person commits arson when he willfully burns a dwelling, such as a house or apartment, of another person. Today, however, many states have removed the “dwelling” requirement and only require that some type of property be burned, even personal property. For example, if one person sets fire to the shirt of another person, that may be considered arson today, though it certainly didn’t fit the common law, historical definition. [1]  

            Arson requires that the person setting the fire intend to start a fire, knowing that the fire will destroy something. For example, California requires that an arsonist set a fire “willfully” and “maliciously.” This behavioral element and intent requirement distinguishes arson from accidental or unintentional burnings.[2]

The intent element requires the intent to cause damage upon starting the fire. It does not require that the targeted property actually be damaged by the fire and liability can attach even though the “wrong” property caught fire. In one case, a man set fire to his wife’s apartment and it spread to a neighbor’s garage and destroyed the neighbor’s car. Though he did not intend to burn the neighbor’s car, he could still be convicted of arson because he did intend to burn down his wife’s apartment. Though the damage to the neighbor’s car was accidental, the intent to destroy the apartment could be transferred to the destruction of the car.[3]

            Arson requires intent and therefore does not cover unintentional burnings, even if they result from negligent or reckless behavior. Some states have created a separate offense called “reckless burning,” which is punished less severely. Reckless burning, also called “unlawfully causing a fire,” does not require that the person intend to start a fire that causes damage. Instead the person must only act recklessly, being aware of a substantial and unjustifiable risk, yet ignoring the risk that her actions could cause a fire.

For example, when a person builds a legal fire in a forest but fails to adequately safeguard it, such as by building a firepit, ringing stones around the fire or by failing to extinguish it before leaving, and that fire gets out of control and causes damage, he can be held criminally responsible if it is determined that he acted recklessly. If he takes adequate safeguards, but unforeseen circumstances arise through no fault of his own that spread the fire, he should not incur criminal liability.[4] Accidents that do not arise from criminal negligence or recklessness are not punishable, as they do not demonstrate the mens rea necessary for criminal liability.

Penalties for Arson

            Arson is punished severely; generally, as a felony, while reckless burning is considered a less serious felony or misdemeanor.[5] Some jurisdictions simply refer to both crimes is different levels under the name “arson.” While arson is almost always a felony, the severity of the punishment is determined based on several factors.  

If the burned property is personal property, the punishment would often be less severe than it would be if the burned property was a home. Moreover, burning an unoccupied building is punished less severely as compared to punishment for burning an occupied building. Third, if a person is harmed because of the fire, the penalty also increases.[6]  In California, if an arsonist harms at least one person, she can face up to nine years in prison.[7]

Rhode Island, as another example, breaks down arson into seven levels, starting with 7th degree arson - making an unauthorized bonfire in a public place - which is punishable by a fine of $100, all the way up to first-degree arson which is causing a fire or explosion in an occupied building that causes substantial risk of serious physical harm, which carries a maximum sentence of life imprisonment and, if a death results, a minimum sentence of 20 years.[8]

            An interesting offshoot of arson is that in certain circumstances, an arsonist can be convicted of felony murder when a victim dies as a result of the arson. In Bonhart v. United States, a drug dealer set an apartment on fire after having sold crack cocaine to two individuals who lived in the apartment who had refused to pay. One of his customers died in the fire. The drug dealer, though he did not intend to kill the individual, could still be convicted of murder under the felony-murder rule.[9]

The Role of Insurance Companies

            Arson, unlike some other crimes, is not exclusively investigated by the police. Insurance companies also investigate arson, as potential insurance payouts have proven to be arson motives in all too many cases. One study revealed that in the wake of the collapse of the real estate market in the late 2000’s, there was a significant uptick in the number of residential fires set across the United States because people were trying to collect the insurance money on their own homes that could no longer be sold at profits. During that time, private insurance companies investigated these arson claims to determine their nature, as many homeowners’ insurance policies contain arson exclusions.[10]

            Any arson case investigated by an insurance company can also result in criminal charges. Every state has arson reporting statutes requiring insurance companies to inform the authorities, either the fire marshal or the police, that it’s investigating a potential arson case.

Furthermore, if the investigating insurance company does disclose information about a potential arson to the police, the company is protected from civil defamation claims that could result from the disclosure.[11]

Those who harness fire to destroy another’s property are punished severely under criminal statutes. While there are variations among states, especially with regards to whether something is arson or reckless burning, states always have, and will continue to, criminalize the underlying conduct of burning something that belongs to someone else.


[1] State v. Robertson, No. W2009-01853-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 987 (Crim. App. Nov. 18, 2010)

[2] See e.g. Cal Pen Code § 451

[3] People v. Green, 146 Cal. App. 3d 369, 194 Cal. Rptr. 128 (1983)

[4] People v. Budish, 131 Cal. App. 3d 1043, 182 Cal. Rptr. 653 (1982)

[5] Cal. Pen. Code. §§ 450-52; A.R.S. §§ 13-1702-06.

[6] Id.

[7] Cal. Pen. Code. § 451

[9] Bonhart v. United States, 691 A.2d 160 (D.C. 1997)

[10] Jessica M. Phillips, “Following The Smoke: The Anatomy Of An Arson Case,” Law 360 A LexisNexis Company (2017).