Criminal Liability

The common law of trespass is viewed as a private wrong, and not an indictable offense[i].  A mere trespass to real property is not a crime at common law unless it amounts to a breach of the peace[ii].  Thus, criminal trespass is for the most part a statutory creation.

Courts in applying criminal laws generally follow the plain and unambiguous meaning of the statutory language[iii].  Only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language.

A criminal trespass statute which prohibits unlawfully remaining upon the land of another after being forbidden to do so is a penal statute and, therefore, is generally construed to require a willful trespass[iv].

Various federal statutes prohibit trespasses upon federal lands, such as national parks[v], national forest lands[vi], Native American and public land[vii], and federally regulated facilities, such as nuclear power installations[viii].

A federal statute penalizes entry upon a military installation for a purpose prohibited by law or lawful regulation and, further, penalizes any presence or reentry upon such an installation after removal therefrom or an order from the commanding officer not to reenter.

In many jurisdictions, statutes and ordinances forbid unauthorized persons to enter or remain upon school premises.

Under some jurisdiction a person is guilty of criminal trespass in the first degree when[ix]:

  • knowing that s/he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person; or
  • such person enters or remains in a building or any other premises in violation of a restraining order issued by the superior court.

Criminal trespass in the first degree is a class A misdemeanor.

A person is guilty of criminal trespass in the second degree when, knowing that s/he is not licensed or privileged to do so, enters or remains in a building.  Criminal trespass in the second degree is a class B misdemeanor.

Further, a person is guilty of criminal trespass in the third degree when:

  • knowing that s/he is not licensed or privileged to do so, s/he enters or remains in premises which are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders, or fenced or otherwise enclosed in a manner designed to exclude intruders, or which belong to the state and are appurtenant to any state institution; or
  • knowing that s/he is not licensed or privileged to do so, s/he enters or remains in any premises for the purpose of hunting, trapping or fishing.

Criminal trespass in the third degree is a class C misdemeanor.

In State v. Steinmann, 20 Conn. App. 599 (Conn. App. Ct. 1990), the court held that simple trespass is not a lesser included offense of any of the three degrees of criminal trespass.

It is affirmative defenses to prosecution for criminal trespass that:

  • the building involved in the offense was abandoned; or
  • the premises, at the time of the entry or remaining, were open to the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or
  • the actor reasonably believed that the owner of the premises, or a person empowered to license access thereto, would have licensed him/her to enter or remain, or that s/he was licensed to do so.

A defense of necessity may be interposed to a criminal trespass action[x].  However, there must be some evidence from which each element of such defense may be inferred before the defense may be considered by a trier of fact.

In People v. Hubbard, 115 Mich. App. 73 (Mich. Ct. App. 1982), the court held that an act which would otherwise constitute a crime may be excused on the ground that it was done under compulsion or duress.  The compulsion which will excuse a criminal act, however, must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done.  A threat of future injury is not enough.

Additionally, in order to raise the defense of necessity, a defendant’s criminal act must support an inference that the criminal act alleviates the impending harm[xi].  Further, necessity, or justification, as a defense is not available if a legal alternative exists.

Thus, to be excused from liability, a defendant must show[xii]:

  • that there is no third and legal alternative available,
  • that the harm to be prevented is imminent, and
  • that a direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

[i] State v. Zarin, 220 N.J. Super. 99 (Law Div. 1987).

[ii] In re Appeal No. 631 (77) etc., 282 Md. 223 (Md. 1978).

[iii] United States v. Albertini, 472 U.S. 675 (U.S. 1985).

[iv] Reed v. Commonwealth, 6 Va. App. 65 (Va. Ct. App. 1988).

[v] 16 USCS § 21.

[vi] 18 USCS § 1863.

[vii] 28 USCS § 2415.

[viii] 42 USCS § 2278a.

[ix] State v. Steinmann, 20 Conn. App. 599 (Conn. App. Ct. 1990).

[x] People v. Hubbard, 115 Mich. App. 73 (Mich. Ct. App. 1982).

[xi] Id.

[xii] State v. Champa, 494 A.2d 102 (R.I. 1985).


Inside Criminal Liability