Criminal defense attorneys are often asked to review cases involving allegations of arson. Long ago arson was considered to be an offense against habitation. The elements of common law arson include (1) malicious (2) burning of a (3) dwelling house of (4) another. Common law arson like common law burglary protected only the dwelling house of another. Burning structures other than dwellings was not common law arson, and defendants who burned their own dwellings with an intent to defraud an insurance company were not guilty of common law arson. Today, defense attorneys will tell you that modern statutes greatly expand the definition of arson; "commercial" arson for the purpose of insurance fraud is the most common form of modern-day arson. The mental state required for arson is malice.
Malice includes a specific intent to burn a dwelling or a wanton or willful disregard for the likelihood that a dwelling will be burned. "So long as defendant has actual subjective intention to do the act he does and does it in disregard of a conscious awareness that such conduct involves highly substantial risks that a structure . . . will be set afire, burned or caused to be burned . . . defendant acts willfully and maliciously." The most technical aspect of common law arson was the requirement that the dwelling house be "burned," which did not mean that the dwelling had to burn to the ground. It did, however, require that the dwelling sustain damage greater than being scorched by nearby heat or discolored by smoke. The distinction between scorching the structure, which was not arson, and charring the structure, which was the requirement that the dwelling be charred or actually ignited. Contemporary definitions of arson often encompass endangering a structure by a nearby fire started for the purpose of burning the building.
It’s important to know that it is not just the burning of a structure that can trigger criminal arson statutes. Attorneys see many cases involving accusations of torched automobiles. These cases most often involve claims of insurance fraud but sometimes arise from jealous partners. We recently observed a Fort Lauderdale criminal arson case where the facts alleged that a jealous boyfriend threw a molotov cocktail into the sunroof of the mans car that he suspected his fiancée of having a affair with.
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