Crimes Against Habitation

Crimes against habitation are not crimes against property. A crime against a "house" would be a crime against property because a house is worth money, it has some material value. Instead, crimes against habitation are crimes against a "home", and the law seeks to protect instances of the concept of "home" from the social harms of INVASION, INTRUSION, DAMAGE, DESTRUCTION, and INSECURITY. "A house is not a home" as the old saying goes.

BURGLARY and ARSON share important common-law origins. Both were serious crimes punishable by death in both England and colonial America. The sentiment that "a man's castle is his home" runs deep in Anglo-American culture. Many of the early settlers to America also came from the English town of Colchester, where in 1575, armed townspeople first challenged the Queen's soldiers from entering homes without a warrant. Here's an excerpt from Lord Pitt's famous speech in the House of Commons about that time:

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It [His home] may be frail, its roof may shake, the wind may blow through it, the storm may enter, but the King of England himself cannot enter. All the King's forces dare not enter, nor cross the threshold of the tenement." (Lord Pitt)

BURGLARY has evolved from a medieval concept of TRESPASS (a broad offense intended to protect churches, walled towns, and places likely to attract people) to COMMON LAW BURGLARY (limited to dwellings, at nightime, and with intent to commit a felony therein) to MODERN BURGLARY STATUTES (breaking and entering, but also remaining, with intent to commit any crime). It's necessary to understand the six (6) common-law elements of BURGLARY because some of these elements continue to function as core or aggravating factors today even though the crime no longer carries the death penalty. I've included comments about modern trends among these elements.

1. Breaking -- The term "breaking" refers to any forceful parting, separating, piercing, or disintegration of a solid substance. Breaking is not the same as causing damage. Breaking is closer to the concept of trespass. All that's required is that some part of the structure was moved, a doorknob was turned, a door was opened, or a window was raised. It doesn't matter if the structure was locked, but it does matter if the opening (door or window left ajar) is large enough for a person to squeeze through without touching anything. Opening an unlocked door is breaking; squeezing through an open door is not breaking. To some degree, the law considers whether the thing involved is used for security purposes, but that is not a defining characteristic. How much something serves as an obstruction is a much more important consideration. For example, a case in Nebraska (State v. McDowell 1994) overturned the conviction of a defendant who was able to jump over a fence to steal transmission parts from a junk yard because no breaking occurred. Consent by the owner is a only valid defense, but if the consent was for limited purposes or for particular times, and entry occurs for other purposes or at other times, a breaking is said to happen. Also, at common law, it is not a burglary if a person remains concealed or hidden within a dwelling even though they must commit a breaking to get out (this is a burglary under modern law and more typical of commercial burglaries). Breaking is sometimes broken down into two types: actual -- involving some minimal use of force; and constructive -- involving entry by means of fraud, conspiracy using an accomplice, or false pretenses. Entering structures in an unusual manner, such as via a chimney, is also considered constructive breaking.

2. Entering -- This element involves the placing of any portion of the body or item connected to the body inside the slightest portion of the dwelling, even momentarily. It is intended to get at various items called "burglary tools" (pry bars, augers, picks, etc.), but offenses can include just placing a finger or sticking the point of a gun inside a windowsill or doorway. The entry item can be connected to the body indirectly, for example, as in a bullet "entering" a home during a drive-by shooting, a brick thrown through a jewelry store window, or a remote control used to open a dwelling's garage door. The entry requirement is satisfied constructively if someone sends a trained dog, monkey, or animal (not an infant, insane person, or someone incapable of commiting a crime) into the home. Entry items can be inanimate or animate, and they're connected to a person's body via the mens reas (or intent) of burglary. The point of entry is determined by "breaking the close", an imaginary geometric plane that defines the physical confines of the house. A "close" is different from a "curtilage". Each state has slightly different versions of the "entering" element, with some states like North Carolina, not even requiring entry -- it is enough that they tried. Here's a breakdown of different state versions:

3. Dwelling -- At common law, any structure intended for sleep is considered a dwelling. Modern statutes tend to define it as any structure or building adapted for the accommodation of persons or the carrying on of business, whether or not occupied, and some states, like California, include vehicles. Abandoned properties do not ordinarily qualify as dwellings, but it's not the presence or absence of people that matter, but rather the character or use of the building (such as if it's someone's summer home or vacation cabin). States normally punish the burglary of an inhabited dwelling more severely than that of an uninhabited dwelling. Any adjacent building within the "curtilage" of a main structure is considered part of the dwelling, such as a garage, barn, stable, cellar, or shed. Vacant apartments are considered the same as houses, but like houses under construction, the common law rule is that a structure becomes a dwelling when the first occupants move in and ceases to become a dwelling when the last occupants move out (because of the building being condemned, permanently vacated, or scheduled for demolition). Four walls and a roof don't constitute a dwelling. Most states have expanded the concept to include motor vehicles, boats, airplanes, tents, camping areas, and unenclosed spots in a yard.

4. Of Another -- The structure must be used as a dwelling by someone other than the accused. Ownership does not matter, as an owner can commit burglary of their own structure if it is rented and used by another. Whether or not a dwelling belongs to another depends on the right of possession, if they take care of it, fix it up, maintain it, or have some "sweat equity" in it. In cases of husband and wife dissolution or separation, an important consideration is the unauthorized entry requirement. The spouse keeping the house must control access (such as by changing the locks) to the home in order for the "of another" element to be satisfied. The fact of marriage only gives an estranged husband an economic interest, not a possessory one.

5. Nighttime -- Technically, this begins one-half hour after sunset and ends one-half hour before sunrise, but legally, it's defined as whenever it's too dark to discern a person's face or to recognize them. This element is intended to get at the characteristics of stealth, disguise, or coverup common to burglaries. Only about half of all burglaries are committed at night, however, and all states today recognize daytime burglaries with nighttime intrusions as an aggravating circumstance. Some states have eliminated the nighttime element completely. Burglary does not require one-night action; a person can commit a "breaking" on one night and an "entering" on another night. As crimes of stealth, burglaries typically last no more than four minutes and no more than $1000 worth of items are taken.

6. Intent to Commit a Felony -- Felonious intent must be present at the time of entry, not at some point once inside the dwelling. The most common reason for committing a burglary is to place oneself in a position to look around and commit a theft. It's the intent to steal something of value, not the act of theft, which satisfies this element of burglary. Burglary is not the same as theft. The act of breaking and entering at nighttime with the intent to commit any felony (e.g., homicide, rape, larceny or mischief) is burglary. The law wishes to avoid arguments over exactly what and how much the burglar intended to steal once inside. Therefore, most states have modified this mens rea element to the intent to commit any crime, thus avoiding the argument of whether or not the intended crime was a felony. A mental state of purposely, knowingly, or recklessly intending to inflict injury or commit harm will usually suffice. It's immaterial whether the intended crime was committed or not; what matters is whether there's a specific intent to commit a crime (other than burglary) prior to actually gaining entrance. This leaves open the question of what to do with offenders who, say, break in to keep warm or escape from harm, and who, once inside, see an item of value and decide to steal it. Such offenders cannot be charged with burglary, and most states charge them with robbery or some other attempted felony, although a burglary conviction may still hold because completion of a criminal act is presumption of a mens rea for burglary. On the other hand, the intent to steal cannot be inferred from the act of unlawful entry. Intent can only be inferred from a set of circumstances: forcible entry; point of entry (rear or side entrance); type of building (items a burglar might be interested in); time of entry; and hiding or attempting to escape when interrupted.

Burglary is sometimes graded into 1st degree (assaults a person present), 2nd degree (carries a weapon), 3rd degree (intends a felony or gross misdemeanor), and 4th degree (intends any misdemeanor), but more commonly the distinction is made between SIMPLE BURGLARY and AGGRAVATED BURGLARY. Burglaries of the 1st and 2nd degree would be the same as aggravated because these grades all involve inhabited dwellings and the offender being armed with a deadly weapon. New York state grades all its burglaries in terms of the potential for danger to the victim. Illinois has a special, more serious than burglary, offense for breaking into inhabited dwellings called HOME INVASION with intent to rob. All burglaries are felonies in every state, however, and penalties are harsh, ranging from five to twenty year sentences. The penalties for burglary are often more severe than the penalty for the intended crime. Conviction for three (3) burglaries (unauthorized entries) of any type usually qualify someone for a life without parole penalty under Three Strikes You're Out laws.

BREAKING AND ENTERING is a term that some states use who have not modified their burglary statutes to define what a dwelling is. Breaking and entering (B & E) is usually reserved for structures other than residences where people sleep; e.g., offices, stores, shops, warehouses, factories, and vehicles. If the targeted location is used for conducting business, the offense is sometimes called COMMERCIAL BURGLARY. Some states also use the terms BREAK AND RUN, CRASH AND CARRY, SMASH AND GRAB, and CAR BURGLARY (the same as the crime of robbery might have the related crimes of highway robbery, or carjacking).

POSSESSION OF BURGLARY TOOLS is a relatively minor offense in most states, and as serious a felony as commercial burglary in some states. To be convicted of this offense, the tools involved would have to be described on a list contained in the state statute, and the prosecutor would have to show intent to use the tools for unlawful purposes. Anyone manufacturing, altering, or supplying such tools may be covered by the statute as well.

FEDERAL LAW contains no burglary statutes, at least not in the residential sense. Breaking into a bank, pharmacy, or post office can be prosecuted under state or federal law, and the sensible thing to do is prosecute under state law because the elements of the crime at federal law may be quite different from what's normally considered burglary.

CRIMINAL TRESPASS involves entering or remaining on property without permission. The property must be marked in some way (No Trespassing signs) or the offender must have been told to leave. Anyone who remains under these conditions is usually charged with the related offense of DEFIANT TRESPASS which has its origins in grown-up children who refuse to leave the home of their parents after being repeatedly told to do so. Trespassing on vacant land is usually a misdemeanor, but a common defense is that the area is an established and well-defined pathway, trail, or public beach. An honest belief that the owner would have granted permission, if asked, also serves as a good defense. Necessity (any old port in a storm) is also a defense, and some states exclude abandoned buildings from trespass laws, although other states include them to go after homeless squatters.

Setting a fire that reaches a structure and burns are the essential elements of arson. Explosions are also treated as burnings for the purposes of arson law. It doesn't matter how much burning takes place. The common law rule is that however slight the burning, the arson is complete. A few states distinguish between "sooting" (smoke damage), "scorching" (blistering), "charring" (external surfaces destroyed), and so forth, but the main point is that a structure does not have to burn to the ground. The kind of structure and amount of damage are circumstances to be considered. An arson can occur inside a house if the item damaged qualifies as a permanent fixture. Sinks, lighting, and appliances qualify; personal property such as furniture, clothing, or documents do not.

There's a difference between "setting a fire" and "burns" in that it is possible to set fire to something, but it gets extinguished before any burning occurs. For this reason, it's important that you read the precise wording of the state statute. If the statutory language contains the word "OR" sandwiched in between "setting a fire" and "burns", then that particular state considers the act of setting a fire an arson even if no burning occurs.

Arson is a crime of general, rather than specific, intent. At common law, the mens rea of arson is "willfully and maliciously", but as a crime of general intent, malice can be inferred from the act itself. All that's necessary is proof that the person intentionally (at any MPC level of intent, even recklessly, although that's called RECKLESS BURNING in some states) started the fire. The criminal intent with arson, therefore, is intent or purpose to start a fire, even if there's no intent to burn a structure. The fire department, not the police, get to determine this, which is often called a fire of INCENDIARY ORIGIN (as opposed to one of unknown origin). A fire inspector must then testify in court that he/she also suspected arson, and then an expert witness must be called to corroborate the fire inspector's opinion.

Arson is typically graded into 1st degree (homes, schools, churches), 2nd degree (unoccupied structures, vehicles), and 3rd degree (personal property). Arson is a crime against possession, not ownership, so it's possible for a person to be charged with burning their own house, or committing an arson against themselves. State statutes do not grade arsons in terms of motive, although they ought to. There's clearly differences between arson-for-profit, revenge arson, and pyromania. Some states reserve their harshest punishments for ARSON WITH INTENT TO DEFRAUD (arson for profit or arson for hire). Some states have the offense of AGGRAVATED ARSON which is kind of like felony murder, but carries additional penalties if a firefighter gets injured while trying to put out the fire. A person who's party to the crime is typically charged with arson rather than being an accomplice to the crime. Actions preliminary to arson, like pouring accelerant on the floor of a building or possessing firebombs, may be offenses related to arson under some state statutues. Making a false bomb threat or false fire alarm is also a separate, but related offense in most states. Arson involving damage to federal property is almost always prosecuted in federal court, as is anything (warehouses, truck facilities) involving interstate or foreign transport.

This is the crime of damaging or destroying the property of another, and it's called CRIMINAL DAMAGE or VANDALISM in some states. It's not generally more than a misdemeanor, but it can be a felony in some cases where there's large financial losses or a serious inconvenience to the general public. Complete destruction of property is not required, but there must be some physical damage which impairs the utility of the property or materially diminishes its value. The property can be inanimate or animate; the family pet can be vandalized. Most, but not all, states attempt to grade the offense by the amount of financial loss involved, with felonies starting in the $2500 range.

Because this is primarily a juvenile crime, the law first considers whether there are any justifications, excuses, or mitigating factors for the behavior. The mental state required is at least recklessness in a general intent approach to "malice", but "willful or wanton disregard" for property is often spelled out in some statutes. Some states and cities have separated out GRAFFITI VANDALISM and POSSESSION OF GRAFFITI MATERIALS as more serious crimes, and most jurisdictions treat CEMETARY VANDALISM and HIGHWAY SIGN VANDALISM as quite serious. Interruption of public service (such as knocking out street lights, cutting telephone lines, throwing stink bombs in school, etc.) is also mischief, but some states treat it as CRIMINAL TAMPERING. The trend is toward state statutes that spell out specific types of mischief; INSTITUTIONAL MISCHIEF, for example, when schools or churches are involved, and ENVIRONMENTAL MISCHIEF, when environmental damage is caused. Many states and cities have passed laws making parents responsible for the financial costs of their children's mischief.

PRINTED RESOURCES
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Last updated: July 08, 2006
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