Civil Lawsuits Against Offenders
Dateline: 09/29/97In most cases, when a person rapes, commits domestic violence against or otherwise abuses another person, he or she has committed both a crime and a tort against the victim. A tort is a civil wrong. A crime is a wrong against the state -- while the victim was directly harmed by the criminal's actions, the state itself also is viewed as having an interest in the matter. A person who has been harmed by the wrongful conduct of another can bring a lawsuit in the civil court system for a remedy. In most cases, that remedy is monetary damages (compensation for losses and pain and suffering, reimbursement of medical bills, etc.) In other civil cases, the legal remedy being sought is an order of protection or other type of restraining order.
Not every civil wrong is also a crime. For example, if your doctor makes a mistake, he or she may be required to pay damages to you to compensate you for your losses. Such mistakes, however, are not usually considered criminal. There are other important distinctions between civil and criminal cases. These include:
Criminal Proceeding Civil Proceeding The government commences the case in the name of "The People" or "The State" against the offender who is called the "defendant". The victim commences the action in his or her own name or the victim's parent or guardian commences the action in the name of the victim. The victim or other person commencing the action is usually called the "plaintiff" and the offender being sued is usually called the "defendant".Parties
Burden of Proof
The government must prove the accusations are true beyond a reasonable doubt. The plaintiff must prove the accusations are true by the preponderance of the evidence in most cases. The preponderance of the evidence standard means that if the jury or just finds that the accusations are more likely than not true, the finding should be in favor of the plaintiff.
Remedy Remedies may include: incarceration (jail), probation, fine, restitution, order of protection or other restraining order, order directing participation in a substance abuse or other program of rehabilitation and the like. Remedy is usually a judgment stating that the defendant must pay the plaintiff a stated sum of money to compensate the plaintiff. Some civil lawsuits (e.g. actions in Family Court) are brought primarily for the purpose of obtaining an Order of Protection but may also include a request that the Court compel the offender to participate in a program of rehabilitation.
Settling "Out of Court"
The defendant can negotiate a plea bargain with the government. The victim does not have to consent to the plea bargain in most cases. The plaintiff can decide whether or not to agree to any proposed settlement of the lawsuit.
Victim Testimony
The victim can be compelled to testify by subpoena. The victim can be compelled to testify but he or she can avoid having to testify by not bringing the lawsuit or by settling or withdrawing it.
Withdrawal of accusation
If the victim decides not to pursue the accusation, he or she may not be allowed to withdraw the charges once a criminal action has been commenced against the offender. The victim usually has the absolute right to withdraw the case for a certain number of days after it was commenced. After that, the victim will usually be allowed to withdrawn the case but may be required to obtain the agreement of the defendant or the approval of the court.
Fact-finder
Usually a jury of twelve unless the crime is considered a minor crime in which case it could be a smaller jury or a judge. If the defendant wishes, he or she may usually opt to have a bench trial where the judge is the fact-finder and there is no jury. May be a judge or a jury. In New York, for example, either party may elect a jury trial in most civil cases.
Implementation of Verdict/Judgment
The state will implement the Court's judgment. If the defendant disobeys, incarceration may be used to enforce the judgment. The plaintiff usually must take steps to enforce the judgment by garnishing the defendant's wages or seizing assets unless the defendant pays the judgment voluntarily. Many civil judgments are never satisfied because the defendant fails to work a job from which wages can be garnished and has no assets that are available for (or worth the expense of) seizure.
The prosecution is ordinarily represented by an attorney employed by the government. The victim (or the victim's parent or guardian) represents himself or herself or hires an attorney at his or her own expense. In some cases, the victim may be able to find an attorney who will take the case on a contingent-fee basis where the attorney is paid from the money recovered from the defendant (if any). In other cases, a program for free or reduced-rate legal representation may be offered through Legal Aid or some other organization.
The most distinctive characteristic of the civil lawsuit is the control the plaintiff has over the action. The plaintiff decides whether or not to bring the lawsuit whereas the police can arrest someone from the crime whether the victim wishes the arrest to happen or not. The plaintiff chooses the attorney that will prosecute the case. In most cases, if the plaintiff is unhappy with the attorney representing him or her, the plaintiff can hire another attorney.
For some victims, the civil lawsuit is the only method of obtaining any remedy because the government does not prosecute the case or the defendant is acquitted in the criminal action. Sometimes, the defendant is acquitted in the criminal trial because the higher standard of proof (beyond a reasonable doubt) cannot be met although the civil standard of proof (preponderance of the evidence) could be met. Sometimes, the government does not do a good job of prosecuting the offender and the victim brings a civil lawsuit in order to have an attorney the victim chooses prosecute the case. For some victims, the goal is to establish the truth of what happened even if the defendant has no income or assets from which the judgment could be collected.
Whether to commence a civil lawsuit is an important decision for the victim. The process can invade the victim's privacy, cost money for lost time from work, attorneys' fees and litigation costs, force the victim to relive the painful memories repeatedly, and otherwise be painful and inconvenient for the victim. What many victims do not realize is that during the discovery phase of civil litigation, the plaintiff and defendant are both entitled to compel the other to produce documents, evidence, answer questions, testify at pre-trial proceedings, etc. In some cases, confidential counseling records may become available to the offender and his or her attorney which is a horrifying prospect for most victims.
Another drawback to civil litigation is that the offender might counterclaim against the victim. Often, to intimidate the victim (and also in cases where a person has brought false accusations against an innocent defendant), the defendant will counterclaim accusing the plaintiff of defamation or some other tort. The plaintiff then faces the possibility that he or she may have to pay money damages if the defendant convinces the jury that the plaintiff is the one in the wrong.
Every victim of abuse who thinks he or she might ever wish to bring a civil lawsuit against the offender should consult an attorney as soon as possible after the abuse because:
It is important to know the statute of limitations applicable to the case. The statute of limitations sets forth the period of time during which the victim must commence the civil lawsuit. If the victim does not commence the civil lawsuit within statute of limitations, the right to bring the lawsuit is forever lost. Statutes of limitations vary from country to country and from state to state within the United States. The applicable statute of limitations for the criminal action may be longer or shorter than the statute of limitations for the civil action for the same misconduct by the offender. Thus, even if the statute of limitations for the criminal action is known, it is important to ask an attorney for information about the statute of limitations for a civil action.
Evidence may need to be preserved.
In some cases, the state will preserve evidence collected in connection with the criminal prosecution. However, if charges were not brought or the case was dropped or resolved by plea bargain, it may be necessary to make arrangements for the evidence to be preserved. In other cases, the police were never involved and any evidence that can be gathered is gathered by the victim or victim's attorney. Typically, the earlier the evidence gathering process is conducted the more evidence is available.
In order to make an informed decision about whether to bring a civil lawsuit, the victim needs to know as much as possible about his or her rights in the jurisdiction where the abuse occurred, the procedures of that jurisdiction, etc.
Many attorneys will provide an initial consultation free of charge. Domestic violence shelters and rape crisis centers often know of attorneys in the area who will discuss legal rights with a victim of domestic violence or sexual assault. Legal aid or similar organizations will also provide consultation to crime victims.
