Arson: Legal Aspects

The Model Arson Law, proposed in the early 1920s by the National Board of Fire Underwriters, enlarges criminal liability for preliminary behavior by punishing not only what would be attempted arson at common law, but also the preparation of a building for burning. In addition, a separate category is established for the intentional burning of any property insured against loss or damage by fire with the purpose of injuring or defrauding the insurer. This provision applies to the accused's own property. It should be noted that while arson requires only a general intent, arson to defraud requires a showing that the burning was specifically for the purpose of collecting insurance. Accessories to arson are liable as principals under the Model Arson Act.

The American Law Institute's Model Penal Code provisions on arson have not been widely followed (§ 220.1). Under these proposals arson is defined as the destruction of a "building or occupied structure" or the damaging of any property with intent to collect insurance. The Code's provisions differ from those of the abovementioned Model Arson Law in several ways. First, they include explosions as a category of arson. Second, they insert in the definition of intent a requirement that the act be done "with the purpose of destroying property." Third, they exclude the actor's own building or structure, unless it was insured. Finally, they unequivocally designate as arson the burning of any property, chattels as well as buildings, with the purpose of collecting insurance.

In addition to the crime so defined, the Code provides lesser felony penalties for reckless burnings or explosions that threaten bodily injury or damage to buildings or occupied structures of another. Other types of property damage by fire are treated as misdemeanors.

In 1978 several insurance associations prepared a model arson penal law, which is similar in several respects to the Model Penal Code. In the proposal a first-degree felony offense of "aggravated arson" encompasses cases of death or bodily injury resulting from arson. The second-and third-degree offenses resemble the Model Penal Code provisions, and include unoccupied structures. Specific penalties are provided for the damage of any property when the purpose is to defraud the insurer.

Consistent with the historical trend toward expansion, Congress enacted the Anti-Arson Act of 1982, Pub. L. No. 97-298, § 2(c), making it possible for the federal government to prosecute for the first time arsons involving nongovernmental property. The Act prohibits damage or destruction by fire (or explosives) of "any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." 18 U.S.C. 844(i) (1994). Federal circuit courts are divided on how broadly to construe the jurisdictional predicate of "affecting inter-state . . . commerce," but some authority exists for extending it to the destruction of private residences based solely on their owners' purchase of natural gas that originated in another state or their securing of mortgages from out-of-state lenders. (United States v. Jones, 178 F.3d 479, 480 (7th Cir. 1999) (residential).)