The origins of trespass as we know it go all the way back to English common law in the thirteenth century. By the time of the American Revolution, it was a well-established legal principle that is a cornerstone of property rights. But there are several subtle distinctions in these laws that can confuse the average person looking to assert their rights or defend themselves against these charges. 

So how exactly is criminal trespass defined, what are the possible punishments, and how it is different from other crimes?

How Is Trespass Defined?

Generally, criminal trespass is defined as unlawful entry onto someone else’s private property without permission. The defendant must be aware that they do not have permission to be on the property, or that any prior permission has been expressly revoked by the owner. The fills the intent element (also known as mens rea) of a criminal trespass charge, with the actual entry fulfilling the actus reus (action) element. Some of the most common complications or questions about trespass arise when it comes to the type of property, and whether or not notice is required to the potential defendant. 

Some states have the added element that a potential trespassers be given some sort of notice that their presence is not wanted. This can be in the form of a sign, but more often a physical barrier like a fence will properly serve notice, as do other normal physical barriers like closed doors to a private residence.

Walking onto someone’s land or into someone else’s house or building are obvious forms of trespass, but by no means the only ones. Getting into someone’s vehicle without permission also qualifies, for example, and some states may have special statutes forbidding hunting game on private land. 

Is Civil Trespass The Same As Criminal Trespass?

While the definitions of each may be the same or very similar in many jurisdictions, the requirements for liability and remedies are quite different. Civil claims require a lower standard of proof than a criminal charge does. All the plaintiff (person claiming trespass) needs to prove is that the defendant committed the offense by a “preponderance of the evidence.” 

Explained with ratios, all the jury needs to decide is that there is a 51% chance that the defendant committed the offense, and then they can be held liable. Criminal conviction requires that the prosecutor prove that the defendant did the act they are accused of “beyond a reasonable doubt,” which is the highest level of proof in American jurisprudence.

The possible remedies are also different. With civil trespass, the idea is for the harmed party to collect monetary reparations for any damages the perpetrator made to their property. Another commonly used remedy is the injunction, which is a court order that legally prevents someone from entering a land or premises, usually in the event that further litigation is necessary. Violation of these court orders can mean arrest in some cases.

What Are the Possible Consequences for a Criminal Trespass Conviction?

The burden of proof for a criminal trespass charge is higher than in civil cases due to the more serious repercussions if the defendant is found guilty. A criminal trespass charge ranges from very minor infractions like misdemeanors or disorderly conduct charges all the way up to felonies, depending on the circumstances of the case. 

Most of the time, defendants are only charged with one of the lesser crimes that can carry short jail sentences or even just fines, probation, and community service. Judges may also force convicted persons to pay reparations for the criminal damages they cause to another person’s property. Felony charges can carry up to several years in prison if aggravating factors are present during the commission of the crime, such as burglary or assault. No matter what the level, a criminal charge should be taken very seriously.

Are There Possible Defenses to Criminal Trespass?

Just like most criminal charges, there are certain defenses that an accused person can use to negate the intent element of a criminal trespass charge. An obvious one is consent. If someone legally allowed to give permission to enter the premises allows you do so, that is generally a foolproof defense. Another defense is public necessity. If you enter private property to protect the public or a member of the public in an emergency, the trespass may be excused. 

A related defense is private necessity. A good example is if you are being chased by a rabid dog and jump someone’s fence to save yourself from injury, this is considered private necessity, although you may still be held civilly liable for any damages. Some jurisdictions allow someone to trespass to reclaim property, but the laws vary wildly from place to place, so check the law in the state where you live.

Do I Need a Lawyer for My Criminal Trespass Case?

All criminal charges are serious business, and can result in fines, community service, probation, prison time, and a permanent criminal record. If you find yourself facing criminal trespass charges you need to seek the expertise of a criminal defense attorney in your area. They will inform you of all your legal rights and help you plan the best way forward to get the best possible outcome.