Arson

SIGNIFICANCE: The evolution of the concept of arson from its common-law origins of the burning of a dwelling of another to a crime involving burning of any person’s property reflects a change in public policy as a result of insurance fraud and the perceived need to protect all property from malicious destruction through burning and related activities.

Before statutory law existed, courts defined arson at common law as a crime against habitation. For an act to be considered arson, five elements had to be present: intent or malice on the part of the arsonist; an actual burning; the burning had to be of a dwelling or surrounding structures; the burned property had to belong to someone other than the arsonist; and the action had to occur during nighttime. Under modern statutory law, which varies among state and federal jurisdictions, legislative bodies and courts have broadened the definition of arson to encompass all acts that result in the intentional burning of any person’s property at any time.

Arson Definition Expanded

Usually the mens rea or intent for arson is malicious and willful conduct, that is, the intentional desire to cause harm. Some jurisdictions require a specific intent to defraud by burning a structure, vehicle, or personal property. Others include in the definition of intent risky behavior that has a strong likelihood of leading to property destruction. Under early twenty-first century law, not only intentionally set fires, but also explosions or similar acts that destroy property—even when no fires are involved—may constitute the intent for arson.

Reasons for committing arson are varied and include pyromaniacs, that is, vandals who set fires for emotional excitement; people who set fires for purposes of revenge or sabotage; people who hope to collect insurance settlements or commit tax fraud; and people who set fires to conceal other crimes, such as murder.

At common law the definition of arson required the actual burning or charring of some part of a building or structure. Now, scorching, smoking, and discoloration are sufficient evidence to support arson convictions. Some state statutes even include criminal liability for impeding firefighting efforts or refusing to help extinguish fires. In addition, under modern statutes the properties that are burned are no longer limited to dwellings. They may also include structures, vehicles, other personal property, and other real property—such as forests or agricultural crops—whether they belong to other people or to the arsonists. Because of the various degrees of arson found in most statutes, acts of arson may now take place at any time of the day or night.

History

Arson is an ancient property crime because it relates to one of the basic human needs—shelter or habitation. Arson was a crime in common law because it threatened the need of community members to feel secure in their homes and other buildings in communities. Common law arsonists had to burn dwellings in the possession of, or occupied by, others, as the belief was that people would not intentionally burn the houses in which they themselves lived. However, wives could be charged with arson for burning their husbands’ property. In two early English cases, a tenant was found guilty of arson for burning a house that he occupied but did not own, and a prisoner was found guilty of arson for setting fire to the building in which he was confined so that he could escape.

After homeowner insurance became available, arson laws began to change, and increasing numbers of people were charged with intentionally burning their own dwellings for purposes of defrauding insurers and collecting the insurance proceeds. Municipalities also became proactive by limiting the use of wood in construction of buildings to reduce the number of natural and deliberately set fires, which often destroyed entire blocks of buildings in overcrowded cities.

In common law, arson was considered a felony, and it continues to be classified as a felony in most modern jurisdictions. However, many statutes provide several degrees of arson and malicious burning, some of which are classified as misdemeanors. Under old English common law, the penalty for arson was death. Today, no jurisdiction employs the death penalty for arson, unless it is coupled with a homicide, which will bring a felony murder charge.

Prevalence

The Uniform Crime Reporting (UCR) Program of the Federal Bureau of Investigation (FBI) for 2019 showed a decline in the number of reported arson cases and arrests nationwide of 4.9 percent when compared with the previous year. Based on UCR data, there was a nationwide average of 10.6 arson offenses per 100,000 persons in 2019. Residential, storage, and public structures suffered the highest rate of arson in 2018 (42.2), while the average monetary loss per arson was $16,371.

The National Fire Protection Association estimates that arson may actually be on the increase because statistics are based only on provable facts and not estimates. In addition, the UCR Program relies on only the data that are reported, and arson data are not reported uniformly by all law-enforcement agencies in the United States. In the future, the continuous improvement of forensic science, technology, and methods of investigating fire scenes should result in improved reporting of statistics related to the crime of arson.

Investigations

Many modern municipal fire departments include specially trained arson investigation units, which are typically made up of firefighters, expert fire examiners, forensic scientists, and law-enforcement officers. Members of such units act as detectives in investigating suspicious fires and gathering evidence that is used in prosecution of arson cases. To ensure that evidence is properly obtained and preserved, many prosecutors become involved in the early stages of such investigations.

Technological advances and modern forensics enable investigators to solve past and present cases of suspicious fires more readily than in the past. Before investigation begins, however, the fire scenes must be made secure by ensuring that the fires are out and that no structures are likely to collapse during the investigations. However, arson investigation is often made more difficult by the fact that evidence is not always preserved by the first responders to fire scenes. Moreover, chemical evidence is not always readily detectible; it may also be volatile and evaporate quickly.

Once fire scenes are secure, investigators conduct “cause and origin” investigations. First, they determine the seats of the fires; then, they look for evidence that the fires have been deliberately set. Investigators search through fire debris and use new technologies, such as those able to detect odorless accelerants, to determine the sources of the fires. The goal of arson investigators is to reconstruct fire scenes and provide adequate evidence to show that the fires are not accidental.

Prosecution and Punishment

Prosecutors in arson cases must prove that fires have been set deliberately. Much of the evidence to prove intent in arson cases is highly technical and thus not always understood by juries. If mistakes are made during a fire investigation and proper protocols are not followed, the prosecution may be unable to provide adequate scientific evidence to prove that the fire was arson.

Many courts request evidence of motive, especially in cases involving insurance fraud or covering up other crimes. Eye witnesses to arson are rare, so evidence in such cases is largely circumstantial. This fact makes it more difficult to prove that a fire has been set beyond a reasonable doubt—which is the standard for obtaining guilty verdicts.

The forms of arson carrying the severest penalties are instances in which human life may be at stake—which is usually the case in arson fires set in inhabited dwellings at night. In addition, in any arson case in which a person is killed, the penalty is high in most jurisdictions. Moreover, such cases may lead to arrests and convictions for felony murder, or murder with aggravated circumstances, and result in death sentences.

Bibliography

Cosgrove, Bill. Accident or Arson? Bethel: Rutledge, 2001. Print.

DeHaan, John D., and Paul Leland Kirk. Kirk’s Fire Investigation. 8th ed. Boston: Pearson, 2016. Print.

Doley, Rebekah M., Geoffrey L. Dickens, and Theresa A. Gannon. The Psychology of Arson: A Practical Guide to Understanding and Managing Deliberate Firesetters. New York: Routledge, 2016. Print.

Faith, Nicholas. Blaze: The Forensics of Fire. New York: St. Martin’s Press, 2000. Print.

Icove, David J., and John D. DeHaan. Combating Arson-for-Profit: Advanced Techniques for Investigators. Upper Saddle River: Prentice Hall, 2003. Print.

Micheels, Peter A., ed. Heat: Fire C.S.I. and the War on Arson and Murder. New York: Adrenaline Classics, 2003. Print.

Ribeiro, Rita. et al. "A Typology of Rural Arsonists: Characterising Patterns of Criminal Behaviour." Psychology, Crime, & Law, 19 Feb. 2024, pp. 1-20, doi.org/10.1080/1068316X.2024.2318373. Accessed 20 June 2024.

Tuthill, Samantha-Rae. "Criminal Arson Charges." Law Info, 20 Dec. 2023, www.lawinfo.com/resources/criminal-defense/arson/. Accessed 20 June 2024.

Wambaugh, Joseph. Fire Lover: A True Story. New York: Avon, 2002. Print.