Trespassers Won’t Be Prosecuted

It’s often said that “trespassers will be prosecuted,” but the truth is, they won’t!  Get a legal expert’s take on trespassing and why it usually is not a criminal matter.

Adam Freedman
3-minute read

Prosecute and persecute do share a common root: they both come from the Latin sequor (“to follow”), but they are vastly different words.  Prosecute has a general sense of pursuing a course of action to its conclusion – be it criminal proceedings or some other activity.  Persecute, on the other hand, means to single out a particular person or group for hostility or ill-treatment.

Surprisingly, the prosecute vs. persecute confusion persists, even among educated observers. For example, in 2004 when jury selection began in the Kobe Bryant rape case, one California newspaper referred to “persecution and defense lawyers” screening the prospective jurors.

You Can Be Sued in Civil Court for Trespass

So when the landowner posted his scary sign, he didn’t mean that trespassers will be arrested, or prosecuted, or persecuted.  What he meant was that “trespassers will be sued for money” which doesn’t sound nearly so threatening. Having said that, even a civil lawsuit is usually enough to make Legal Lad turn around and flee from the meadow.

You can be sued for trespass, because it is a tort or a “civil wrong.”In fact, trespass was the original tort: a term meaning “any wrongful conduct that interferes with the person or property of another.”

There Are Many Types of Trespass

Today, when we think of trespass in the legal context, we have something more narrow in mind – the unauthorized entry onto another person’s property. In reality, that sort of conduct is properly called “trespass to land” and it is only a subset of the doctrine of trespass. Until the 19th century, there were many forms of trespass, including trespass de bonis asportatis (literally, trespass of goods carried off) and trespass vi et armis (literally, trespass with force and arms; this was the cause of action to recover money from somebody who intentionally inflicted harm on you). And again, none of these forms of trespass required prosecution by the state.

Somewhere out there, an entrepreneur may be reading and might just be inspired to create a new generation of trespassing signs with snappy but legally-correct slogans, like: “Warning: Trespassers will not be prosecuted or persecuted, but will be subject to civil lawsuits.” That one ought to fly off the shelves.

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Tresspass image from Shutterstock