11.3: Arson

Arson has its roots in property law. Like burglary, arson is primarily a crime against habitation. Unlike burglary, arson protects property against malicious burning. Common law arson was limited to the malicious burning of a dwelling of another. The Alaska legislature expanded this definition beyond dwellings, but continued to criminalize the intentional damage to property by fire or explosion. See generally Hathaway v. State, 925 P.2d 1343 (Alaska App. 1996). Since arson is a property crime, and not a crime against the person, setting one fire and damaging one piece of property is just one arson despite the fire causing multiple victims to be placed in danger and each suffering significant property loss. Id. The gravamen of the offense is the instrumentality used to damage property – fire or explosion.

All jurisdictions consider arson a serious felony. Alaska classifies first-degree arson (Alaska’s most serious arson) as a class A felony offense, punishable by up to 20 years in prison. In fact, several states require convicted arsonists to register with the government, similar to sex offender registration databases. Alaska does not require convicted arsonists to register, but nonetheless, severally punishes the behavior. First-degree arson is an “inherently dangerous felony” under the felony-murder rule. AS 11.41.110(a)(2).

Alaska has three degrees of arson. First-degree arson criminalizes the intentional starting of a fire or causing an explosion that recklessly places another person in danger of serious physical injury. AS 11.46.400. First-degree arson requires a person to intentionally damage any property (their own or someone else’s) by fire or explosion. As a result of the defendant’s intentional act, another person must be placed in danger of serious physical injury. Emergency first-responders qualify as “another person” for purposes of first-degree arson.

The defendant is not required to intend that the person be placed in danger. The defendant need only to ack recklessly – they must disregard a substantial and unjustifiable risk that someone will be placed in danger of serious physical injury. Of course, if they did intend that a person be placed in danger, the crime has also occurred. Thus, if a person intentionally starts a fire and recklessly disregards the risk that a firefighter will be placed in danger while responding, the person will be guilty of first-degree arson even though the person did not intend to harm anyone. Note that there is no requirement that a person actually suffer serious physical injury. Merely placing a person in danger of serious physical injury will suffice. First-degree arson focuses on the danger associated with intentionally set fires – both to innocent victims and first-responders.

Second-degree arson is when a person knowingly damages a building by fire or explosion. AS 11.46.410. Arson uses the same definition of building as burglary. The term building includes all ordinary structures capable of allowing a person to physically enter and occupy it.

Note however, the law recognizes that in some instances, the most economical method of removing a building is to burn it. Such conduct is exempted from second-degree arson if the defendant establishes that no other person had an interest in the property, or if they did, they consented to the burning, and that the burning was for a lawful purpose. AS 11.46.410(b). This is an affirmative defense.

Recognize, however, burning a building to defraud an insurance company would not be a burning for a lawful purpose. Neither would be the burning of a building by one partner when the other partner had not consented to the burning. A similar affirmative defense does not exist for this type of arson.

The law provides two separate ways to commit third-degree arson. First, if a person intentionally starts a fire inside a motor vehicle while the vehicle is on public land, the person is guilty of third-degree arson. This section recognizes the danger associated with vehicle fires on public lands, especially in forested parks and remote areas. Third-degree arson also includes setting another person’s vehicle on fire if the vehicle is on private property. Although the statute does not criminalize setting one’s own vehicle on fire if on private property, the fire, if it spreads and causes additional damage may give rise to criminally negligent burning.

Criminally negligent burning punishes individuals who fail to perceive the danger of starting a fire and the fire damages property. AS 11.46.430. For example, wildfires that are started by human negligence (that is, failing to be careful or not taking adequate protections) can be prosecuted as criminally negligent burning. Recall that criminal negligence requires the defendant to fail to perceive a substantial and unjustifiable risk of harm. AS 11.81.900(a)(4). Criminally negligent burning is a class A misdemeanor unless the defendant has been previously convicted of similar offenses. If the defendant has two prior convictions, then the defendant is considered a recidivist and guilty of a class C felony. AS 11.46.427.

Finally, the law criminalizes a person’s failure to control or report a dangerous fire. AS 11.46.450. This statute creates an affirmative duty on a person to exercise due care to prevent the uncontrolled spread of a fire when the person knows that a fire exists. If a person knows that a fire is endangering life or substantial property and fails to take steps to control the fire or notify authorities of the fire, the person is guilty of a class A misdemeanor. This statute criminalizes a person’s failure to act.