You’re staring at an MBE fact pattern about a defendant who sets fire to a building after punching someone in the face, and your brain is scrambling to remember which elements go with which crime. Was the breaking requirement for arson or burglary? Does assault require actual contact? This confusion costs you points on exam day.
Let’s fix that. Arson, assault, and battery are three crimes that appear regularly on the MBE, and the bar examiners love testing whether you can distinguish their elements. Here’s how to keep them straight.
Why These Three Crimes Trip Up Bar Examinees
These offenses appear simple on the surface, but the MBE tests subtle distinctions. Assault comes in two flavors that require different mental states. Battery seems straightforward until you have to distinguish it from assault. And arson has a burning requirement that’s more specific than most students realize.
The bigger problem? Traditional bar prep courses bury these rules in 200-page outlines where they blend together. When you’re trying to recall the elements under timed pressure, you need them organized for comparison, not scattered across chapters.
Arson on the MBE: It’s All About the Char
Arson is the malicious burning of the dwelling house of another. Let’s break down what the MBE actually tests.
First, the mental state is malice, which makes arson a general intent crime. You don’t need to prove the defendant specifically intended to burn down a dwelling. Malice here means the defendant acted with reckless disregard of an obvious risk that the structure would burn. Setting fire to trash against the side of a house satisfies malice if a reasonable person would know the house might catch fire.
Second, “burning” has a precise meaning. The structure must experience actual charring of the wood or other structural material. Scorching, smoke damage, or discoloration isn’t enough. The MBE loves to test this distinction. If a defendant sets a fire that blackens the walls but doesn’t char the wood, that’s not common law arson (though it might be attempted arson).
Third, the common law definition requires a dwelling house of another. Modern statutes have expanded arson to include any structure and even the defendant’s own property when done to defraud insurers, but the MBE tests common law unless the question specifies otherwise.
Here’s a typical MBE scenario: Defendant throws a Molotov cocktail at a house. It breaks through a window and burns the carpet but is extinguished before the walls char. Is this arson? No—there’s no charring of the structure itself, even though there’s clearly a fire and clear malice. The defendant could be liable for attempted arson or for whatever modern statute applies, but not common law arson.
Arson is also one of the BARRK felonies (Burglary, Arson, Rape, Robbery, Kidnapping) that trigger felony murder liability. If someone dies during the commission of arson, even accidentally, the defendant can be charged with felony murder.
Assault: Two Crimes Wearing the Same Name
Assault is actually two distinct offenses, and the MBE tests both. Understanding which type you’re dealing with determines what mental state you need to prove.
Attempted battery assault requires the specific intent to cause harmful or offensive contact. The defendant must take a substantial step toward completing a battery but fail to make contact. If the defendant swings a fist at the victim’s face but misses, that’s attempted battery assault. The key is that the defendant specifically intended to make contact.
Threat-type assault (sometimes called apprehension assault) requires intentionally placing another person in reasonable apprehension of an imminent battery. This doesn’t require intent to actually make contact—only intent to cause the victim to fear imminent contact. If the defendant raises a fist and says “I’m going to hit you” while standing two feet away, that’s threat-type assault even if the defendant never intended to follow through.
The MBE frequently tests the distinction. Consider this hypothetical: Defendant points an unloaded gun at Victim, who doesn’t know it’s unloaded, and says “Say your prayers.” Defendant has no intent to shoot. Is this assault? Yes—it’s threat-type assault. Victim reasonably feared imminent harmful contact, and Defendant intended to create that fear. It’s not attempted battery assault because Defendant lacked the specific intent to actually harm Victim.
One more critical rule: words alone are generally insufficient for assault without some overt act. If Defendant yells “I’m going to punch you tomorrow,” that’s not assault. The threat must be of imminent harm, and there must be some act beyond mere words (like raising a fist or moving toward the victim).
Battery: The Contact Crime
Battery is the unlawful application of force to another person resulting in bodily injury or offensive touching. This is a general intent crime—you only need to prove the defendant intended to commit the act that resulted in the contact, not that they intended harm.
The force can be applied directly (punching someone) or indirectly (setting a trap that injures someone, or causing an object to strike someone). If Defendant throws a rock that hits Victim, that’s battery even though Defendant didn’t personally touch Victim.
“Offensive touching” is broader than you might think. It includes any contact that a reasonable person would find offensive, even if it causes no physical injury. Spitting on someone is battery. Intentionally blowing smoke in someone’s face can be battery. Cutting someone’s hair without permission is battery.
The MBE loves testing consent as a defense to battery. If Victim consented to the contact, there’s no battery—but the contact must be within the scope of the consent given. If two people agree to a boxing match and one boxer punches the other in the ring, that’s not battery. But if the boxer pulls out a knife mid-match, that exceeds the scope of consent and becomes battery (and probably worse).
Here’s where students get confused: What if the defendant intended to scare the victim but accidentally made contact? That’s still battery because battery is a general intent crime. If Defendant swings a fist near Victim’s face to scare them (threat-type assault) but accidentally connects, Defendant is liable for battery even though they didn’t intend contact.
Comparing the Elements Side by Side
Let’s put these crimes next to each other:
Arson requires: (1) malicious (general intent), (2) burning (actual charring), (3) of a dwelling house, (4) of another.
Assault (attempted battery) requires: (1) specific intent to cause harmful or offensive contact, (2) a substantial step toward completion, (3) failure to complete the battery.
Assault (threat-type) requires: (1) intent to place another in apprehension, (2) of imminent battery, (3) reasonable apprehension by the victim.
Battery requires: (1) general intent, (2) unlawful application of force, (3) resulting in bodily injury or offensive touching.
Notice the mental state differences. Arson and battery are general intent crimes—you just need to prove the defendant intended to do the act. Attempted battery assault is a specific intent crime—you must prove intent to cause the specific harmful contact. Threat-type assault requires intent to cause apprehension, which is also a specific mental state.
How the MBE Tests These Distinctions
The bar examiners construct fact patterns that blur the lines between these offenses. You’ll see scenarios where a defendant commits multiple crimes in sequence, and you need to identify which charges apply.
Example: Defendant gets into an argument with Victim. Defendant raises a fist (threat-type assault), then punches Victim in the face (battery), then pushes Victim into their house and sets the curtains on fire. The fire scorches the walls but is extinguished before charring occurs. What crimes has Defendant committed?
Defendant committed threat-type assault (raising the fist with intent to cause apprehension), battery (the punch), and attempted arson (the fire didn’t char the structure). Many students would incorrectly say arson because there was clearly a fire, but without charring, common law arson isn’t complete.
Another favorite MBE trick: testing whether assault merges into battery. It doesn’t. A defendant can be convicted of both assault and battery arising from the same incident. If Defendant raises a fist (assault) and then punches Victim (battery), both crimes occurred even though they happened in rapid succession.
What You Actually Need to Memorize
For arson, memorize: malicious burning (charring required) of the dwelling of another. If you see fire damage without charring, it’s not arson.
For assault, memorize the two types and their different mental states. Attempted battery = specific intent to cause contact. Threat-type = intent to cause reasonable apprehension of imminent contact.
For battery, memorize: general intent crime requiring unlawful force resulting in injury or offensive touching. Force can be direct or indirect. Consent is a defense if within scope.
Know that assault and battery don’t merge—you can be convicted of both. Know that arson is a BARRK felony that triggers felony murder. Know that battery is a general intent crime, so accidentally completing what you intended as only an assault still gives you battery liability.
Organizing These Rules for Active Recall
The MBE doesn’t ask you to recite definitions. It gives you fact patterns and asks you to apply the rules. That means you need these elements organized in a way that lets you quickly compare and contrast them under pressure.
This is exactly what FlashTables Criminal Law & Procedure is designed to do. Instead of flipping through outlines trying to find the arson rule and then the assault rule and then the battery rule, you get all the “Other Crimes” elements in structured tables that show you the distinctions at a glance. When you’re drilling practice questions, you can quickly reference the exact elements without wading through paragraphs of explanation.
The Criminal Law tables cover all 104 frequently tested rules, including the complete breakdown of assault, battery, arson, and the other property and personal crimes that appear on the MBE. If you want these elements organized for efficient memorization rather than buried in narrative outlines, check out the Criminal Law & Procedure tables.
The key to MBE success with these crimes isn’t just understanding them in isolation—it’s being able to instantly recall the elements and spot the distinctions when the examiners throw you a complex fact pattern. Drill the elements until you can recite them in your sleep. Your score on test day depends on it.