Concept
Model Penal Code Arson
Arson
Model Penal Code Arson
The common law track closed on the rule that habitation, and not the defendant's motive, defines arson, so the offense depended on what kind of structure burned and who lived in it.1 The Model Penal Code starts from the opposite end and asks what the actor was trying to accomplish. Under § 220.1(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 reaching one of two prohibited objects.2 The first object is destroying a building or occupied structure of another, and the second is destroying or damaging any property, whether the actor's own or another's, to collect insurance for the loss.3 Offenses of this kind, which are modeled on arson without matching its common law elements, are commonly labeled statutory arson.4
Read closely, the provision has three working parts, and each does a different job. The conduct is starting a fire or causing an explosion, so the Code's offense does not depend on fire doing the damage, and a blast can satisfy it.5 The mental state is purpose, which means that the actor's conscious object in setting the fire was to bring about one of the two results. The object is the result the actor sought, either the destruction of another's building or occupied structure or the destruction or damage of property to collect insurance. Because purpose is the center of the offense, a fire that spreads further than the actor wanted, or that was lit as a means to some other end, does not satisfy § 220.1(1) however much damage it does.
Each of the two objects closes a gap that the habitation-based offense left open, and each has its own reason. The first object drops the dwelling limit. A fire set with the purpose of destroying a warehouse, an office, or a vacant building endangers neighboring property and anyone nearby whether or not anyone sleeps inside, yet at common law that fire fell outside arson because the structure was not a dwelling that another used as one.6 Extending the offense to any building or occupied structure of another places the wrong where the danger actually lies. The second object answers the insurance gap. An owner who burned his or her own dwelling to defraud an insurer committed no common law arson, because the offense protected occupancy and had no concern with ownership.7 The Code makes the fraudulent purpose itself the object, so the actor's own property is covered when the fire is set to collect on the loss, and the profit motive that was irrelevant at common law becomes the element that carries the charge.
The paragraph also gives the actor an affirmative defense, meaning a defense that operates even when the prosecution has proved every element of the offense. The defense applies when the actor's conduct did not recklessly endanger any building or occupied structure of another and did not place any other person in danger of death or bodily injury.8 Its most visible work is for insurance burning, where a fire in an isolated structure may threaten no one, and the discussion of that object develops it. Because the components apply in a fixed sequence, the whole provision is best run as a short checklist.
The two scenes hold the structure and the harm constant, and the answer moves only with the defendant's purpose. That is the Code's central design choice, and it also explains why the kind of building drops out of the first scene: the warehouse is enough because the defendant meant to destroy it.
On an exam stem the first trap is carrying the dwelling requirement into a Model Penal Code problem. Questions about who sleeps in the structure, and whether the defendant owns it, decide common law arson and do not control § 220.1(1), where another's warehouse qualifies if the defendant's purpose was to destroy it and the defendant's own property qualifies if the purpose was insurance. The opposite error is calling every destructive fire arson. The Code's offense requires purpose, so a stem describing a fire set for another reason, with damage to a neighbor's building as an unwanted result, calls for the lesser fire offenses and not for § 220.1(1). The next three subsections take the components of § 220.1(1) in order: the purposeful fire or explosion, the building or occupied structure of another, and burning for insurance.
Purposely Starting a Fire
The opening clause of § 220.1(1) has two working parts, the conduct and the mental state, and each departs from the common law in a way that can be seen element by element. The conduct is that the actor starts a fire or causes an explosion.11 At common law the damage had to come from fire, so a blast that destroyed a structure with no fire involved was not arson.12 The Code's words "or causes an explosion" remove that limit. The reason is that an explosion that levels a building endangers the people inside and the property next door just as flames do, and the harm the offense exists to punish does not change with the physical process that produces it. The Code therefore asks whether the actor set a destructive process in motion for a prohibited object, and it does not ask which process did the damage.
The mental state is where the Code moves furthest from the common law. Common law malice was met when the defendant intended the structure to burn, knew it would, or recklessly disregarded an obvious risk that it would, so a defendant who never wanted the building to burn could still be an arsonist. Section 220.1(1) requires purpose: the actor's conscious object in starting the fire or causing the explosion must be one of the prohibited results listed in the paragraph, either destroying a building or occupied structure of another or destroying or damaging property to collect insurance.13 Purpose is a higher mental state than malice, because knowledge and recklessness no longer suffice. That choice matches the grade. The offense is a felony of the second degree, a serious grade reserved for deliberate destruction, and fires set with lesser mental states are not left unpunished but are graded separately in the reckless burning and failure-to-control offenses that come later in this chapter. Splitting the offenses by mental state lets punishment follow culpability, where stretching arson to cover careless fires would erase the difference between the person who means to destroy and the person who is merely heedless.
The two scenes show that the method of destruction and the mental state vary independently. In the first the Code's broader conduct clause rescues a case that the fire-only rule would lose, and in the second the purpose requirement defeats a case in which fire is present. A more culpable version of the second scene sharpens the point. An actor who burns brush in dry weather while ignoring an obvious risk to a neighbor's house has the reckless disregard that common law malice reached, yet the actor's object was to clear brush, so § 220.1(1) is not satisfied and the lesser fire offenses govern.
On an exam stem the trap is reading common law malice into the Code's purpose requirement. A stem that describes a reckless or careless fire calls for a different offense than § 220.1(1), however much damage results. The reverse error is to reject an explosion case because no flames appear, since the Code's conduct clause reaches a purposeful blast and the fire-only limit belongs to the common law.14
Building or Occupied Structure of Another
The first prohibited object in the Code's arson offense is the purpose of destroying "a building or occupied structure of another."17 Two phrases in that clause need definitions before it can be applied, occupied structure and of another, and § 220.1(4) supplies both.18 The clause replaces the common law's single question, whether the structure was a dwelling that someone other than the defendant used for sleeping, with two separate questions: what kind of place was targeted, and whether anyone besides the actor holds an interest in it. Each question is wider than its common law counterpart, so a fire that was not arson at common law often is arson here. The structure comes first, then the meaning of "another," then the rule for buildings divided into units.
The Code defines an occupied structure as any structure, vehicle, or place adapted for overnight accommodation of persons, or for carrying on business there, whether or not a person is actually present.19 Two uses qualify a place, sleeping and business, and the definition tests the place by what it is adapted for, not by who happens to be inside when the fire starts. A shop that is locked at midnight remains an occupied structure because it is fitted for business, and a house whose family has left for the summer remains one because it is fitted for sleeping. The reason follows from what the offense protects. The danger of fire to people attaches to places built for people to use, including the neighbors whose property sits nearby and the firefighters who respond, so the Code ties coverage to the character of the place and does not wait for proof that someone was home. The words "vehicle" and "place" carry the definition past conventional buildings, so a camper fitted for sleeping or a trailer fitted out as an office can qualify. Because the clause names "building" separately from "occupied structure," an ordinary building is covered under the first term, and the defined phrase does its most distinctive work for those other kinds of places.20
The second phrase, "of another," is also defined. Property is that of another if anyone other than the actor has a possessory or proprietary interest in it.21 A possessory interest is a right to occupy or control the property, as a tenant has, and a proprietary interest is an ownership stake, as a co-owner has. The test therefore asks whether anyone besides the actor holds either kind of interest, and the actor's own title or occupancy does not end the inquiry. The reason is that the offense protects the persons a fire wrongs or endangers, and those persons are the holders of interests in the property, whether or not they hold sole title. A definition that looked only to title would let a defendant point to a tenant's lease or a co-owner's share and escape, and defining the term by any interest closes that route. The comparison with the common law is sharpest here. The common law asked who used the structure as a dwelling, so a tenant who burned the rented house occupied by that tenant alone had not burned the dwelling of another. Under the Code the landlord holds a proprietary interest, so the house is property of another, and a fire set with the purpose of destroying it falls within the clause.
A third rule handles buildings divided into separately occupied units, such as apartment houses and multi-tenant commercial buildings. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another.22 The Code applies the test unit by unit, which matters because a resident of one unit could otherwise argue that the building is partly the resident's own and so is not property of another. Unit-by-unit analysis removes that argument, since the unit next door is occupied by someone else, and that makes it a structure of another no matter where the defendant sleeps. The rule also fits the physical danger, because a fire in one apartment threatens the neighbors on every side of it.
In each scene an element the common law demanded drops out or changes shape. The office needs no sleepers, because the clause reaches any building of another, and the apartment is judged unit by unit, so the defendant's own residence in the building supplies no defense. The next pair holds everything constant except who else has an interest in the property.
The cottage, the fire, and the purpose are identical in the two scenes, and the answer moves only with the existence of a second interest holder. The sole owner is not necessarily free of liability under § 220.1(1), because the insurance branch reaches an actor's own property when the fire is set to collect on the loss, and that branch is the subject of the next subsection.
On an exam stem the recurring trap is treating occupying or partly owning the structure as a complete answer. A stem may describe a tenant who sets fire to the rented house she lives in alone, and the common law instinct says that is the tenant's own habitation and so no arson. The Code asks a different question, and the landlord's proprietary interest makes the house property of another. The same reasoning reaches a co-owner who burns jointly owned property and a resident who burns a neighboring unit. The opposite error is to demand that someone be asleep or even present, since a closed shop or an empty house fitted for overnight use is an occupied structure whether or not anyone is inside. Neither correction removes the purpose requirement, so a fire set for some other reason that damages a neighbor's building is outside § 220.1(1)(a).
Burning for Insurance
The second prohibited object in § 220.1(1) shifts the question from what the actor targeted to why the actor wanted it harmed. Paragraph (b) reaches a person who starts a fire or causes an explosion with the purpose of destroying or damaging any property, whether the actor's own or another's, to collect insurance for the loss.27 The conduct and the purpose come from the opening clause studied above, so the fire or blast must be set with the insurance object already in mind. The structure and interest tests of paragraph (a) drop away here. The text says any property, so inventory or a vehicle qualifies as readily as a building; it says the property may be the actor's own or another's, so the actor's title is no obstacle; and it says destroying or damaging, so a fire that only partly harms the property is enough.28 Once the fire is proved, the prosecution adds one thing, the insurance purpose.
At common law the same conduct was not arson. A person who burned his or her own dwelling to obtain insurance proceeds fraudulently committed no arson, and the fraud was left to the separate insurance-fraud statutes that modern legislatures have enacted.29 That result followed from what the common law offense protected, which was the habitation of someone other than the defendant, and an owner who burned a home for money usually threatened no one else's. The Code starts from a different observation about incentive. The person best placed to profit from a fire is the insured owner, who controls the property, knows when it will stand empty, and holds a policy that turns its destruction into a payment. An offense defined by whose dwelling burned leaves that person outside its reach, and the insurance branch closes the gap by defining the wrong through the actor's object.
Civil insurance law points the same way. When the owner of a building intentionally burns it down, the loss is not fortuitous, and property insurance will not pay it.30 Many policies say so expressly through an arson clause that excludes coverage for a fire the insured intentionally started.31 Even in states with valued policy statutes, which require the insurer to pay the policy's face amount on a total loss, the insurer can still defend against payment by proving arson or fraud.32 The criminal offense therefore targets the same payment that the civil rules deny, and it attaches when the owner sets the fire, before any claim is paid.
Paragraph (b) carries a limit that paragraph (a) lacks. It is an affirmative defense to a prosecution under this paragraph that the actor's conduct did not recklessly endanger any building or occupied structure of another or place any other person in danger of death or bodily injury.33 An affirmative defense is one the actor must raise: the prosecution proves the fire and the insurance purpose, and the actor then shows that no one else was put in danger. The defense is written for paragraph (b) alone, so a person who sets fire to a building of another with the purpose of destroying it under paragraph (a) has no such defense.34 The reason for the defense lies in what remains of the wrong once danger is removed. A fire that threatens no neighbor and no person leaves only a fraud on the insurer, and fraud is addressed by separate statutes.35 The serious grade of arson is thus kept for insurance fires that carry a risk of harm to others, and the defense sorts those fires from the ones that are fraud alone. Because the defense is phrased in terms of endangerment, the inquiry centers on the danger the fire created for other buildings and persons.
Ownership and insurance purpose are constant across the two scenes, and the prosecution's case under paragraph (b) is complete in each. The answer moves on one variable, danger to others, which decides whether the actor has a defense.
Because purpose is a state of mind, the prosecution usually proves it from surrounding facts. Evidence that the defendant earlier burned a different building covered by similar fire insurance can help show a plan to destroy buildings for the proceeds, provided it is coupled with other evidence and the burnings belong to a single overarching plan, since otherwise it shows only a general tendency toward wrongdoing.36 The branch also depends on fire or explosion. Damage by other means done with intent to defraud an insurer lacks the conduct the opening clause requires, so it is not arson and falls instead under criminal damage to property, which covers injury to property other than by fire or explosion.37
On an exam stem the trap is treating ownership of the burned property as a defense. A stem in which an owner burns the owner's own store or home for the insurance money invites the common law answer that no one commits arson against oneself. Under the Code that answer is wrong, because paragraph (b) names the actor's own property, and the only escape is the affirmative defense, which requires that no building of another and no person was endangered. The reverse error is to make the prosecution prove danger to others as an element of paragraph (b), when the absence of danger is the actor's defense to raise.