The Burning of a Dwelling under Massachusetts criminal law makes it unlawful to willfully and maliciously set fire to, burn, or cause to be burned, or aid, counsel or procure the burning of a dwelling house by another.
Under Massachusetts criminal law, the crime of Burning a Dwelling may be found at Massachusetts General Laws, Chapter 266, Section 1.
What is a Dwelling for Purposes of this Crime
Table of Contents
A “dwelling house” under Massachusetts criminal law includes all buildings used as dwellings, such as apartment houses, tenement houses, hotels, boarding houses, dormitories, hospitals, institutions, sanitoria, or other buildings where people live or reside. The dwelling house does not need to be occupied at the time of the burning for a defendant to be found guilty of arson.
Also, it does not matter whether the defendant owns the building or if it is owned by another person. A person can commit the crime of arson by burning his or her own property, as if often the case with insurance fraud claims stemming from a fire.
Legal Elements of Burning a Dwelling
Setting Fire to, Burning, or Causing to be Burned a Dwelling
To be found guilty as a principal actor for Burning a Dwelling under Massachusetts criminal law, there must be strong evidence of the following legal elements:
- that the defendant set fire to, burned, or caused a building to be burned
- the building was a dwelling house, a building adjoining or adjacent to a dwelling house, or a building whose burning resulted in a dwelling house being burned
- the defendant acted willfully and maliciously
Willfulness means that the act was intentional and by design, rather than by accident. To be guilty, the acts of setting on fire, burning, or causing to be burned and the resulting burning must be both intentional. The term “maliciously” or “malice” means that the act was done with an evil disposition, meaning with a wrong and unlawful motive or purpose and without lawful excuse.
Aiding, Counseling, or Procuring the Burning of a Dwelling
Another way to be found guilty of Burning a Dwelling under Massachusetts criminal law is if there is strong evidence of the following legal elements:
- that the defendant intentionally aided, counseled, or procured
- a burning
- the building was a dwelling house, a building adjoining or adjacent to a dwelling house, or a building whose burning resulted in a dwelling house being burned
For the purposes of this theory, “aided, counseled, or procured” means that the defendant participated in committing the crime of arson by agreeing to stand by, at, or near the scene of the crime to render aid, assistance or encouragement, if it became necessary, to the person who set fire to or caused the burning of the dwelling house or by assisting the perpetrator to make an escape from the scene or by procuring another person to burn a dwelling house.
However, the mere facts that the defendant knew that the crime was going to be committed or was merely associated with the person who set the fire or mere presence at the scene of the fire is insufficient to prove arson. Furthermore, mere failure to take appropriate steps to prevent the crime or mere agreement also is not sufficient to prove arson. The defendant does not have to physically participate in the commission of the arson, he only needs to agree to be present and was in fact present.
What Damage is Required for Arson
To be found guilty of any arson offense, it is not required that the building or property in question be completely destroyed by the fire. Evidence of mere charring to the property is sufficient for a conviction. However, the extent of the damage or destruction of the property is an aggravating factor prosecutors and judges will consider when determining an appropriate sentence.
Potential Punishment if Convicted of Burning a Dwelling in Massachusetts
The potential consequences for Burning a Dwelling, if convicted, in the Commonwealth may be found at Massachusetts General Laws, Chapter 266, Section 1. A defendant convicted for this offense under either theory shall be imprisoned in the state prison for not more than 20 years or in a jail or house of correction for not more than 2 ½ years.
In addition, a defendant can be convicted of an arson offense even if the crime was not fully committed. The law penalizes the willful and malicious attempt to set fire to, or attempt to burn, or aids, counsels or assists in such an attempt any building, structure or property.
If convicted of attempted arson, a defendant shall be punished by imprisonment in the state prison for not more than 10 years or in a jail or house of correction for not more than 2 ½ years. This offense and punishment may be found at Massachusetts General Laws, Chapter 266, Section 5A.
If you have been charged with Burning a Dwelling and need expert legal representation, contact the Massachusetts Arson Lawyers at the Law Office of John L. Calcagni III call today at (508) 213-9113 to schedule a free consultation.
