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Black’s Law Dictionary defines arson as the, “intentional and wrongful burning of someone else’s property (as to destroy a building) or one’s own property (as to fraudulently collect insurance).” It then goes on to state that in common law, it was the malicious burning of someone else’s dwelling house or outhouse that is either appurtenant to the dwelling house or within the curtilage. Aggravated assault, a harsher offense, is outlined in the dictionary as, “arson accompanied by some aggravating factor, as when the offender foresees or anticipates that one or more persons will be in or near the property being burned." [1]

An Indiana Court of Appeals expanded the definition and found that smoke and soot damage are enough to support a conviction for arson. Thus an arsonist can be charged for the damage that the smoke and soot create on top of, or instead of, the damage that the fire creates. [2]

Model Penal Code

The Model Penal Code (MPC) § 220.1 outlines offenses constituting arson as well as related offenses to arson:

1. A person is guilty of arson, a felony of the second degree, if he starts a fire or causes an explosion with the purpose of:
  • destroying a building or occupied structure of another or
  • destroying or damaging any property whether his own or anothers to collect insurance for such loss.
2. Reckless Burning or Exploding: a person commits a felony of the third degree if he purposely starts a fire or causes an explosion whether on his own property or anothers, and thereby recklessly:
  • places another person in danger of death or bodily injury; or
  • places a building or occupied structure of another in danger or damage or destruction.[3]

Various Jurisdictions


The California Penal Code gives an extensive explanation of arson, as seen by its clarification in three different sections. Section 451 generally defines arson as when one maliciously or willfully sets fire to, burns, or causes to be burned any structure, property, or forestland. Punishments for this section are as follows:

  • Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years.
  • Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years.
  • Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years.[4]

Section 451.5 addresses aggravated arson; it states that any person who deliberately, with premeditation, and with the intent to cause injury to one or more persons, sets fire to or aids in the burning of any structure, property, or forest land is guilty of aggravated arson if one or more of the following aggravated factors exists:

  • The defendant has been previously convicted of arson on one or more occasions within the past 10 years.
  • The fire caused property damage and other losses in excess of six million five hundred thousand dollars ($6,500,000).
  • The fire caused damage to, or the destruction of, five or more inhabited structures.[5]

Section 452 is the third component and it discusses reckless arson, which states that a person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.[6]


The Illinois Compiled Statutes (ILCS) chapter 720, section 5, article 20-1 states that, a person commits arson when, by means of fire or explosive, he knowingly:

  • Damages any real property, or any personal property having a value of $150 or more of another
  • with intent to defraud an insurer, damages any property, or any personal property having a value of $150 or more.
  • arson is a class 2 felony (3-7 years in prison)[7]

Section 20-1.1 of the ILCS states that one commits aggravated arson when, in the course of committing arson he knowingly damages any building or structure and:

  • he knows or reasonably should know that one or more person are present
  • any person suffer great bodily harm, or personal disability or disfigurement as a result of the fire or explosion or
  • a fireman or policeman acting in the line of duty is injured
  • Aggravated arson is a class X felony, punishable by 6-30 years in prison.[8]


§ 18.2-77. Burning or destroying dwelling house, etc:

  • If any person maliciously (i) burns, or by use of any explosive device or substance destroys, in whole or in part, or (ii) aids, counsels or procures the burning or destruction of any dwelling house or manufactured home whether belonging to himself or another, he shall be guilty of a felony, punishable by imprisonment not less than five years and, subject to subdivision g of § 18.2-10, a fine of not more than $100,000.
  • Any such burning or destruction when the building or other place mentioned in subsection A is unoccupied, shall be punishable as a Class 4 felony.[9]

§ 18.2-80. Burning or destroying any other building or structure:

  • If any person maliciously, or with intent to defraud an insurance company or other person, burn, or by the use of any explosive device or substance, maliciously destroy, any structure at a time when no person is in such building, or other structure, and such building, or other structure, with the property therein, be of the value of $200, or more, he shall be guilty of a Class 4 felony, and if it and the property therein be of less value, he shall be guilty of a Class 1 misdemeanor.[10]

§ 18.2-82. Burning building or structure while in such building or structure with intent to commit felony:

  • If any person while in any building or other structure unlawfully, with intent to commit a felony therein, shall burn or cause to be burned, in whole or in part, such building or other structure, the burning of which is not punishable under any other section of this chapter, he shall be guilty of a Class 4 felony.[11]

Common Defenses

The first defense to arson is mistaken identity. Due to the public nature of the crime, there is a lot of pressure on law enforcement to arrest someone. Mistaken identity is a common defense for arson because a lot of the time there are no witnesses when arson occurs, and rarely is the suspect arrested at the scene. Thus the prosecution has the duty to prove without a reasonable doubt that it was you who committed the crime, and they need sufficient evidence to prove that (a photograph or an eye witness), which they may not have.

This leads into the second defense for arson, alibi. An alibi is a claim that one was elsewhere when a criminal act is alleged to have taken place. If you have evidence that you were somewhere else when the arson took place, then you could not have committed the crime.[12]

More specifically, arson prosecutions often concern not only issues such as identity, motive, absence of mistake, or potential justifications, but also on whether a potential crime - human-created burning - has occurred at all. In the absence of evidence of eyewitnesses, a confession, or similar direct evidence that a person started a fire or an explosion, prosecutors must rely on the circumstantial evidence produced by arson investigation. The presence of flammable liquids like gasoline or kerosene, bomb materials, and the like are often put forward as evidence of intentionally created fires.

A great deal of forensic literature exists about arson investigations, but as a simple matter arson investigators begin by determining the place within a building or structure where a fire began by noting where in the building the most destruction occurred. If the severity of the destruction is most severe at a place where accidental fires are known to begin – such as electric wiring, ashtrays, fireplaces, stoves etc, the investigator must at least consider an innocent explanation. However, if a fire clearly began in a place where normal household mechanics or activities would not be expected to trigger a fire, a human catalyst is often presumed. Because insurance fraud is known to be a common motive for arson, every arson case involves investigation into who could have expected to benefit from destruction of the property.

Since intentionally-created fires in homes are crimes of such a drastic nature, and often not the product of a rational plan to pursue any particular selfish motive, defense counsel should explore mental health defenses like insanity or diminished capacity.

Foreign Codes


The Australian Institute of Criminology states that there are four core elements to arson:

  1. The lighting of fire – fire is the fundamental element of arson; if there is no fire lit, there is no arson (some legal definitions also include lighting explosives);
  2. Intention or Willfulness – excludes fires started by natural causes or accidents;
  3. Malice – excludes fires started intentionally with positive or legitimate intent (to cut back brush); and
  4. Property – there must be some kind of property or object that is burned.[13]

The Model Criminal Code Officers Committee (MCCOC), proposed a model criminal code on arson in resolution 36 of 2001. This resolution establishes two offences of arson; the first when a person causes damage to a building or conveyance by means of fire or explosive and intends to cause, or is reckless as to causing, damage to that building or conveyance. And the second, when a person makes a threat to cause damage to a property or conveyance by means of fire or explosive and intending the victim of the threat to fear that the threat will be carried out.[14]


Section 306 of the German Criminal Code (GCC) outlines the punishment for arson by expressing that:

Whosoever sets fire to or by setting fire to them destroys, in whole or in part
  • buildings or huts;
  • plants or technical facilities, in particular machines;
  • warehouses or stored goods;
  • motor-vehicles, rail vehicles, aircraft or watercraft;
  • forests, heaths or moors;
  • agricultural, nutrition or forestry products
belonging to another shall be liable to imprisonment from one to ten years and in less serious cases the penalty shall be imprisonment from six months to five years.[15]

Section 306a of the GCC specifies aggravated arson as:

Whosoever sets fire to or by setting fire to them destroys, in whole or in part
  • a building, ship, hut or other premises which serve as a dwelling for people;
  • a church or another building serving the practice of religion;
  • premises which from time to time serve as a residence for people at a time which people usually reside there,
shall be liable for imprisonment of not less than one year.[16]


  1. Black’s Law Dictionary, 9th edition (2009)
  2. Williams v. State, 600 N.E.2D 962 (IND. APP. 1992)
  3. Model Penal Code, § 220.1
  4. California Penal Code, Title 13, § 451
  5. California Penal Code, Title 13, § 451.5
  6. California Penal Code, Title 13, § 452
  7. Illinois 720 ILCS 5/20-1
  8. Illinois 720 ILCS 5/20-1.1
  9. Va. Code 18.2-77
  10. Va. Code 18.2-80
  11. Va. Code 18.2-82
  14. MCCOC, 2001: 36
  15. German Criminal Code, § 306
  16. German Criminal Code, § 306a