Common Law Arson vs. Modern Law
Abstract
Arson is one of the offenses that was recognized long before the American justice system came into place. The offense was provided for under common and has continued to evolve through statute. Common law provided for the key elements that were required to prove arson through judicial decisions. As the law continued to evolve, and countries began the codification of law through statutes, the federal government and the respective states enacted laws that would govern arson. While the nature, general definition, and seriousness of the crime remained the same, there have been significant changes in the elements required to prove arson. Statutes, such as the North Dakota Code 12.1-21-01, have expanded the scope under which a person can be charged with arson. This expansion and improvement by statute was necessitated by the gaps left unaddressed by common law provisions and were probably identified in the course of practice and while prosecuting arson cases. The North Dakota code, for instance, recognizes the burning of one’s property for purposes of claiming insurance as arson, this was not the case in common law, which did not view burning down one’s property as arson.
This paper will examine the elements required to prove arson under common law and the North Dakota statute, the differences that can be drawn from the two systems, and suggestions on what can be done to improve the law even further.
Keywords: arson, common law, statute, and property
Common Law Arson vs. Modern Law
Introduction
Arson is the criminal act of willfully burning down or setting fire to a building; it could be homes, business premises, or industrial property. The North Dakota Code 12.1-21-01 provides that a person is guilty of arson, if he starts or maintains a fire or causes an explosion with intent to destroy an entire or any part of a building or inhabited structure of another or a vital public facility, or if he starts or maintains a fire or causes an explosion with intent to destroy or damage his own real or personal property for the purpose of collecting insurance for the loss. (12.1-21-01).
Elements of Arson
Several elements have to be fulfilled to successfully prove a case of arson in court. These elements are;
- Evidence of burning – This forms part of Actus Reus, and it must be demonstrated that there was indeed a fire set to a building and the fire was started as a result of a criminal act.
- Malicious or fraudulent purposes – The prosecution must demonstrate that the fire was started maliciously and not merely as an accident or that the perpetrator had fraudulent motivation, such as claiming insurance for the losses. (The Open University of Hong Kong, 2012)
- A dwelling place, building either belonging to another person or oneself – This element varies in different jurisdictions and has been expanded over the years to cover more areas than had been provided for by common law. According to the North Dakota law, burning down a building or any other inhabited structure or a public facility, which could mean schools, churches, bridges, and shelters will amount to arson. It also applies to the perpetrator’s real or personal property, meaning his house or even cars, boats, and other personal property. (The Open University of Hong Kong, 2012)
- Intention – The final element requires the prosecution to prove that the perpetrator had the intention to cause damage when he started the fire and that the same was not purely accidental. Intention can be proved even where the property that was burned was not the intended one.
Common Law Position on Arson
Under common law and before the existence of criminal law statutes, the courts defined crimes including arson. Judges were bound by their predecessors’ decisions, and over time the courts defined the elements that would be used to prove arson. These elements were then applied to each case’s circumstances and facts, and a decision was reached. Under common law, arson was defined as the malicious burning of another person’s dwelling. (Cornell Law School Legal Information Institute, n.d.) and the elements required to prove the offense were:
- Malicious burning – This required that the act of setting the fire was done deliberately and with the intention to cause harm and that the same was not an accident.
- Actual burning – There was a need to prove that the accused person’s actions led to a burning. Under common law, one did not require to show any significant amount of damage to prove arson, it was taken to include even the smallest damage caused by the fire.
- Dwelling place – Under common law, one had to prove that the burning occurred to a dwelling place (Legal Resources, n.d.), which was defined as a place that was occupied by people as their residence. The accused person was culpable whether or not there were people in the house at the time of the fire as long as the same was a dwelling place.
- The property must have belonged to another person – Common law arson did not apply to burning one’s own property. The burned property must have belonged to another person other than the perpetrator. This was based on the assumption under common law that the property owner had every right to deal with and destroy their property as they deemed fit.
Comparison between Common Law Arson and Statute
As evidently shown in the above discussion, arson in its definition and its elements has developed over the years, and lawmakers have continued to modify statutes to expand the elements required to prove this offense. There have been some significant changes. Firstly, under common law, one could not be charged with arson for burning down their property. Under the North Dakota statute, arson includes burning one’s own personal or real property to fraudulently claim insurance for the loss. This has broadened the scope from what was originally there under common law. Secondly, the element on dwelling place has been significantly expanded to include buildings or part of a building and vital public structures. This has gone beyond places of residence to include buildings that are not necessarily used as dwelling places and public places such as schools, churches, parks, and offices. Prosecutions can now be done for burning down residential, commercial, and even industrial places. Thirdly, the element of burning has been expanded from just setting or causing fire to a building, either directly or indirectly, to include using explosions to destroy property.
Conclusion
From the foregoing, it is clear that the law governing arson and particularly the elements required to successfully prove the crime in court has evolved. The scope has been significantly expanded by statutes to cover areas that were not covered by common law. These changes were necessitated by gaps identified in the course of practice and in the process of prosecuting these cases. For example, the narrow definition that required an arson charge to succeed only if the property belonged to another person other than the offender was must have caused insurance companies millions of dollars while at the same time endangering the adjacent properties and the people that lived in them. As the insurance industry continued to grow, it became necessary for the law to be modified to take care of the new realities.
Similarly, the expansion from burning down a dwelling place to include other buildings and other public facilities was necessitated by the need to protect and preserve human life. Public places like offices, schools, and churches are a big part of our modern life, and people spend a reasonable amount of time in those places. It was also for the protection of public property. While the evolution of arson law is evident, there are more measures that could be adopted including making arson that leads to death or grievous bodily harm a class A felony, include in the definition places such as forests, parks which currently do not fall within the definition and increase the punishment for arson-related offenses.
References
North Dakota Code, 12.1-21-01
Cornell Law School Legal Information Institute. (n.d.). Arson. https://www.law.cornell.edu
HG.Org Legal Resources. (n.d.) Arson Law. https://www.hg.org/arson.html
The Open University of Hong Kong. (2012). Criminal Law. Creative Commons.