Other crimes - Arson

Learning Outcomes

After reading this article, you will be able to identify and apply the elements of arson as tested on the MBE. You will understand the required actus reus, mental state, the distinction between common law and modern statutory arson, and related offenses. You will also be able to spot common exam pitfalls and answer MBE-style questions on arson with confidence.

MBE Syllabus

For MBE, you are required to understand the law of arson as a property crime. This includes both common law and modern statutory definitions. In your revision, focus on:

• The elements of arson at common law and under modern statutes.
• The required mental state (malice).
• What constitutes a "burning" and the types of property covered.
• The distinction between arson and related offenses (e.g., houseburning, insurance fraud).
• Modern statutory changes expanding arson liability.
• Defenses and common exam traps.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. At common law, which of the following is required for arson?
   1. Burning of any property
   2. Malicious burning of the dwelling of another
   3. Burning by negligence
   4. Burning of your own property
2. Which mental state is required for arson?
   1. Strict liability
   2. Negligence
   3. Malice
   4. Purpose
3. Under modern statutes, which of the following is NOT typically required for arson?
   1. Use of fire
   2. Damage to a dwelling
   3. Malicious intent
   4. Burning of property other than a dwelling
4. Which of the following is true regarding "burning" for arson at common law?
   1. Any blackening is sufficient
   2. Only charring of the structure is required
   3. Only destruction of contents is required
   4. Smoke damage alone is sufficient

Introduction

Arson is a classic property crime tested on the MBE. It involves the malicious burning of property, traditionally a dwelling, but modern statutes have expanded its scope. Understanding the elements, mental state, and statutory variations is essential for MBE success.

Elements of Arson at Common Law

At common law, arson required:

1. The malicious
2. Burning
3. Of the dwelling
4. Of another

Each element must be satisfied for a conviction.

Key Term: Arson (Common Law)
The malicious burning of the dwelling of another.

Malice Requirement

Arson is a malice crime. The defendant must act with intent or reckless disregard that creates a substantial risk of burning. Accidental or negligent burning is not arson.

Key Term: Malice (Arson)
Acting with intent or reckless disregard of an obvious risk that burning will occur.

The "Burning" Requirement

Not every fire or damage qualifies. At common law, "burning" required some charring of the structure itself, not just blackening or damage to contents. Scorching or smoke damage alone is insufficient.

Key Term: Burning (Arson)
Damage by fire to the structure itself, requiring charring of the material, not just blackening or damage to contents.

Dwelling of Another

At common law, only dwellings (places regularly used for sleeping) were protected. Burning your own dwelling was not arson. Temporary absence of the occupant did not change the dwelling's status.

Key Term: Dwelling (Arson)
A structure regularly used for sleeping by someone other than the defendant.

Modern Statutory Changes

Most states have expanded arson beyond common law:

• Arson now often includes burning any building, structure, or even personal property.
• Burning your own property may be arson if done with fraudulent intent (e.g., to collect insurance).
• Damage caused by explosion is often included.
• The requirement that the property be a dwelling or belong to another is usually abolished.

Key Term: Arson (Modern Statute)
The malicious burning of any building, structure, or property, regardless of ownership.

Related Offenses

• Houseburning: At common law, burning your own dwelling in a city or near other dwellings could be a separate offense.
• Arson for Insurance Fraud: Modern statutes often criminalize burning property to collect insurance.
• Reckless Burning: Some statutes create lesser offenses for reckless, but not malicious, burning.

Worked Example 1.1

A sets fire to his own vacant house, intending to collect insurance. The fire spreads and damages a neighbor's home. Under modern statutes, can A be convicted of arson?

Answer:
Yes. Modern statutes typically cover burning one's own property, especially with fraudulent intent, and the spread to another's property makes A liable for arson as to the neighbor's home.

Worked Example 1.2

B, angry at her ex-partner, throws a lit match onto the partner's porch. The match causes only blackening of the paint, with no charring of the wood. Is this arson at common law?

Answer:
No. Blackening alone is not sufficient; there must be charring of the structure itself for common law arson.

Exam Warning

On the MBE, do not confuse "malice" with "intent to cause harm." Malice for arson includes reckless disregard of a substantial risk of burning, even if the defendant did not specifically intend to burn the property.

Revision Tip

Remember: At common law, burning your own dwelling was not arson. Modern statutes often abolish this limitation—check the facts for statutory language.

Key Point Checklist

This article has covered the following key knowledge points:

• Arson at common law required malicious burning of the dwelling of another.
• Malice includes intent or reckless disregard of a substantial risk of burning.
• "Burning" means charring of the structure, not just blackening or damage to contents.
• At common law, only dwellings of another were protected; modern statutes expand coverage.
• Modern statutes often include burning any property, explosions, and burning one's own property for fraudulent purposes.
• Related offenses include houseburning and arson for insurance fraud.
• Defenses include lack of malice, accidental burning, or insufficient damage to the structure.

Key Terms and Concepts

• Arson (Common Law)
• Malice (Arson)
• Burning (Arson)
• Dwelling (Arson)
• Arson (Modern Statute)