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Civil Justice For Crime Victims 

 

Definition: Crime victims seek civil justice by filing lawsuits against criminal perpetrators or other responsible parties in order to be compensated for the damages incurred as a result of the criminal act.

Overview

More than 37 million Americans are victimized by crime each year.(1) The consequences of crime frequently extend far beyond the criminal act. All too often victims are left with expenses for medical procedures, physical rehabilitation, counseling and lost wages. It is estimated that crime costs victims $345 billion annually.(2) Although many crime victims and their families have some knowledge about the legal system, they are often unaware that there are two systems of justice available in which to hold the offender accountable--the criminal justice system and the civil justice system.

The Criminal Justice System

The criminal justice process begins after a crime has been committed and reported to law enforcement. If an arrest has been made and charges have been filed, the accused offender may be prosecuted. In a criminal prosecution, the crime is considered "a crime against the state." The victim's role is primarily defined as a witness for the prosecution. Although in some jurisdictions the prosecuting attorney may be very helpful to the victim and the victim's family, in the criminal justice system, the prosecuting attorney represents the interests of the state against the accused offender - not the victim.

The criminal justice process works to judge the guilt or innocence of accused offenders, and when found guilty, to punish and/or rehabilitate them.

The criminal courts can provide crime victims with a sense of justice and can sometimes provide victims compensation through restitution orders. Unfortunately, even when restitution is ordered, it is rarely enforced. This lack of enforcement combined with statutory restrictions on the type of damages that may be included in a restitution order, often results in restitution falling far short of meeting victims' needs. Compensation may also be available from the state's crime victims' compensation board, however these programs are often subject to restrictions and limitations that may prevent crime victims from being fully compensated (see FYI bulletin entitled State Compensation Laws ).

The Civil Justice System

The civil justice system, unlike the criminal justice process, does not attempt to determine the innocence or guilt of an offender, nor incarcerate him. Rather, the civil courts attempt to ascertain whether an offender or a third-party is civilly liable for the injuries sustained as a result of the crime.

In civil cases the "crime" is referred to as a tort. For most criminal offenses there is a corresponding tort for which a crime victim may bring a civil suit. Some examples include:

 

bulletAssault - putting the victim in fear of being injured while the perpetrator has the present and immediate capacity to inflict that injury.
bulletBattery - any intentional physical contact that offends the victim. Battery includes but is not limited to the crimes of sexual battery, rape, molestation, fondling, forcible sodomy, malicious wounding, and attempted murder.
bulletWrongful Death - a death caused by another person which occurs without justification or excuse, including murder, manslaughter and vehicular homicide.
bulletFalse Imprisonment - holding a victim against his or her will for any amount of time, no matter how brief. This often occurs in rape and kidnapping situations.
bulletIntentional or Reckless Infliction of Emotional Distress - causing a victim emotional distress or anxiety through extreme, outrageous and offensive conduct. Emotional distress is usually claimed in conjunction with another tort, rather than standing alone. Emotional distress is frequently seen in stalking cases.
bulletFraud - an intentional misrepresentation of facts made to deceive the victim, resulting in damages. This is often seen in white collar or economic crimes such as criminal fraud, telemarketing schemes, racketeering, etc.
bulletConversion - the theft or destruction of personal property, other belongings or money. This includes larceny, concealment, embezzlement and others.

Most often, a civil court's finding of liability means that the defendant must pay the victim, and/or the victim's family monetary damages. In this respect, the civil justice system can provide victims with more of the monetary resources needed to help rebuild their lives. Furthermore, the civil justice system often provides victims and their families with a sense of justice that the criminal courts cannot. Rather than holding a defendant accountable for his or her "crime against the state," the civil justice system holds a defendant who is found liable directly accountable to the victim for the harms he or she has suffered.

Burden of Proof

In the civil justice system, liability must be proven by a preponderance of the evidence, which simply means that one side's evidence is more persuasive than the other. This standard is far less than the "proof beyond a reasonable doubt" required for a conviction in the criminal justice system. Therefore, it is sometimes possible to find the defendant liable in a civil case even though a verdict of "not guilty" was rendered in the criminal case - or even if the offender was never prosecuted. A good example of this principle is the O.J. Simpson case. Simpson, a former professional football player and well-known sports commentator, was prosecuted for the murder of his former wife, Nicole Brown and her friend, Ron Goldman. In 1995, the jury found Simpson "not guilty" of the murders. Despite Simpson's acquittal in the criminal justice system, the families of Nicole Brown and Ron Goldman filed a wrongful death law suit against Simpson. A civil trial was held in 1997 and Simpson was found liable for the deaths of Brown and Goldman. The jury in the civil case awarded the victims' families $33.5 million in damages. While a criminal conviction may increase the chances of a perpetrator being held civilly liable, it is by no means a requirement for bringing a civil action.

Third-Party Liability

In some civil cases a "third-party" defendant may be held liable. Third-party defendants are not the persons who actually commit the acts, but instead are those parties who may have contributed to or facilitated them. A few examples of possible third-party defendants in a victim's case would include:

 

bulletHotel, motel and apartment owners who do not have adequate security measures, such as locks on doors and windows and proper lighting to provide for the safety of their guests;
bulletColleges and universities that fail to provide adequate security for students or fail to notify students of campus assaults, leaving students vulnerable to victimizations;
bulletShopping malls that do not employ security patrols or other necessary measures despite a likelihood or a history of criminal attacks on customers;
bulletA person who allows a child access to a firearm or other dangerous instrument and the child, in turn, uses the weapon to injure another person;
bulletChild-care centers, schools, and churches that do not properly check the backgrounds of their employees, or simply transfer employees to other locations following allegations of abuse; or
bulletA tavern owner or social host who continues to serve alcohol to an inebriated person who subsequently injures someone in a drunk driving crash.

It should also be noted that successful civil lawsuits can have a significant deterrent effect. Actions against negligent third parties can promote enhanced safety practices and encourage the exercise of greater caution, thereby reducing the likelihood that others will become victims of crime.

Considerations for Pursuing Civil Justice

A significant difference between the criminal and civil court systems is that in a civil case, the victim - usually through the advocacy of a privately retained attorney - controls essential decisions shaping the case. It is the victim who ultimately decides - usually upon the advice of his or her attorney - whether to sue, accept a settlement offer, or go to trial.

Through civil litigation, more and more victims are obtaining payment for medical expenses, psychological counseling, lost wages, earning ability, and property loss. In addition, they are more frequently recovering damages for "pain and suffering" - a remedy traditionally unavailable through restitution ordered by criminal courts.

However, a victim contemplating a civil lawsuit should bear in mind that obtaining a civil judgment is only half the battle. In many cases in which the victim wins a judgment, it may be difficult to collect the money awarded by the court. Victims, their lawyers, and advocates, recognize that justice demands that such judgments be satisfied. Unfortunately, many defendants do not pay these judgments, and this possibility should be considered seriously by the victim and his or her attorney prior to filing a civil lawsuit.

However, there are sources of recovery that are not always obvious. There are numerous sources of assets with which perpetrators can satisfy civil judgments. Many of those sources fall into three broad categories:
bulletCurrent and expected assets - these include cash, securities, wages, and both real and personal property as well as expected assets Such as inheritances, interests in estates, pensions and annuities.
bulletInsurance - Many perpetrators will have some kind of insurance coverage: homeowners', automobile, professional, general liability, etc. While most insurance policies exclude intentional acts from coverage, there are some circumstances that allow perpetrators to utilize insurance coverage to satisfy civil judgments.
bulletWindfalls - Perpetrators sometimes come into sums of money that no one could have anticipated such as unexpected inheritances or proceeds from lawsuits. Some prisoners have even won lotteries.

Statutes of Limitation

There are time limits for filing civil suits set by statute. These statutes of limitation vary from state to state but usually are from one to three years. Any suit filed after the expiration of the statute of limitations is time-barred and cannot proceed. There are certain circumstances, such as those involving child victims and victims with repressed memories, where the time in which victims can file suit has been extended (see FYI bulletin entitled, Extensions of the Criminal and Civil Statutes of Limitations in Child Sexual Abuse Cases).

Though there is a limited time in which to file a suit, once a judgment is obtained, it is valid for a minimum of 20 years and can often be extended. In other words, even if a perpetrator has no assets today, filing suit and securing a judgment may allow the victim to seize assets the perpetrator may obtain many years in the future.

Where to Go for Help

The National Center for Victims of Crime established the Carrington Victims' Litigation Project (CVLP) to facilitate civil suits by crime victims. The Project offers victims referrals to attorneys for consultation. The Project also publishes a legal journal, Crime Victim Litigation Quarterly, and a case reporter, Crime Liability Monthly.

Victims seeking more information or attorney referrals should call the National Center for Victims of Crime at (703) 276-2880. Victims seeking legal assistance may also contact their local bar association, legal aid society, or look in the local yellow pages.

Conclusion

The civil justice system offers victims of crime another opportunity to secure what they seek most - justice. Regardless of whether there was a successful criminal prosecution - or any prosecution at all - victims can bring their claims before the court and ask to have the responsible parties held accountable. In the civil justice system offenders are held accountable, not to the state, but rather to the victims who suffered the direct impact of the crime. While money awarded in civil lawsuits can never fully compensate a victim for the trauma of his or her victimization or the loss of a loved one, it can provide valuable resources for crime victims to help rebuild their lives. Furthermore, the exposure to civil liability is a powerful incentive for landlords, businessmen and other proprietors to enact the security measures necessary to prevent future victimizations.

Endnotes

1. Ringel, Cheryl. Criminal Victimization 1996. Bureau of Justice Statistics, National Crime Victimization Survey (November 1997), p. 3.

2. Miller, Ted R., Cohen, Mark A., and Wiersema, Brian. Victim Cost and Consequences: A New Look. National Institute of Justice, U.S. Department of Justice (February 1996), p.1.

Bibliography

Carrington, Frank and James Rapp. (1991). Victims' Rights: Law and Litigation. New York: Matthew Bender Company.

Crnich, Joseph and Kim Crnich. (1992). Shifting the Burden of Truth: Suing Child Sexual Abusers -- A Legal Guide for Survivors and Their Supporters. Lake Oswego, OR: Recollex Publishing.

Goelman, Deborah, Fredrica Lehrman and Roberta Valenta (editors). (1996). The Impact of Domestic Violence on Your Legal Practice: A Lawyer's Handbook. Washington, DC: American Bar Association.

Horowitz, Robert and Howard Davidson, eds. (1984). Legal Rights of Children -- Family Law Series. Colorado Springs, CO: Shepard's/ McGraw-Hill, Inc.

Karp, Leonard and Cheryl Karp. (1989). Domestic Torts: Family Violence, Conflict and Sex Abuse -- Family Law Series. Colorado Springs, CO: Shepard's/McGraw-Hill, Inc.

Lehrman, Fredrica. (1996, February/March). "Elements of Interpersonal Domestic Violence Torts: Some Non-Traditional Alternatives." Domestic Violence Report, 1(3): 3-4.

National Center for Victims of Crime. (1992). Legal Remedies for Crime Victims Against Perpetrators: Basic Principles -- A Training and Resource Manual. Arlington, VA: National Center for Victims of Crime.

National Center for Victims of Crime. (1994). Legal Remedies Manual Supplement. (3rd ed.). Arlington, VA.

National Center for Victims of Crime. (1995). "Extensions of the Criminal and Civil Statutes of Limitations in Child Sexual Abuse Cases." FYI, Arlington, VA: National Center for Victims of Crime.

National Center for Victims of Crime. (1995). "Rights of Crime Victims." FYI, Arlington, VA: National Center for Victims of Crime.

O'Brien, Victoria. (1993, December). Civil Legal Remedies for Crime Victims. Washington, DC: U.S. Department of Justice, Office for Victims of Crime.

Stark, James and Howard Goldstein. (1985). The Rights of Crime Victims. New York: Bantam Books.

For additional information, please contact:

National Crime Victim Bar Association
P.O. Box 588
Arlington, VA 22216
(703) 276-0960
http://www.victimbar.org

Office for Victims of Crime Resource Center
P.O. Box 6000
Rockville, MD 20849-6000
(800) 627-6872

FYI: A Program of the National Center for Victims of Crime.

All rights reserved.

Copyright 1998 by the National Center for Victims of Crime.  This information may be freely distributed, provided that it is distributed free of charge, in its entirety and includes this copyright notice.

 

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