Service providers, State legislatures and prosecutors’ offices throughout the country have made great strides in recognizing victim needs and in protecting victim rights. However, crimes committed are still treated by the criminal justice system as an offense against the state rather than against the individual. The criminal justice system is designed to protect and enforce the rights of society as a whole. It functions to convict, punish and rehabilitate criminals, not to assist victims with mental and physical recovery.
It is likely that a victim wishing to vindicate his or her rights against a perpetrator or third party will find the civil court to be a much more agreeable forum than the criminal court.
With respect to the weight of the evidence, a civil court plaintiff needs only to prove his or her case by a preponderance of the evidence, much less demanding than the “beyond a reasonable doubt” burden carried by the criminal prosecutor. Since the civil burden of proof is easier to satisfy, the victim may very well win his or her civil suit even though criminal charges are never filed or even if the defendant is found not-guilty in criminal proceedings.
Civil legal remedies are important because they provide the victim with an opportunity to vindicate his or her individual rights. Civil suits brought by victims serve both to exact damages from perpetrators and to encourage potential third parties to adopt adequate crime prevention measures. These effects combine to deter potential crime, thereby contributing greatly to a safer society. Overall, the goal of civil suits by victims of crime is to make the victim “whole” again.
Redemption through Tort Liability
Most criminal acts are also torts. Torts refer to civil wrongs which have resulted in personal injury and loss of property. Victims of crimes often can seek possible civil legal remedies and monetary relief through various types of civil causes of action.
A tort may be the result of either an intentional act or inaction, or the result of negligence. Both types of torts have several common legal elements: First, the defendant must have had intent to harm the plaintiff. If intent to harm does not exist, then the defendant must have negligently failed to perform a duty owed to the plaintiff. Second, the defendant must have committed the tortious act alleged in the civil complaint. Third, the act must have been the cause of the plaintiff’s injury
The following are types of torts which victims of crimes can typically seek civil legal remedies:
- Wrongful Death
- False Imprisonment
- Intentional Infliction of Emotional Distress
Damages awarded for the injuries sustained from these torts may be compensatory (payment for expenses), punitive (punishment for a defendant’s malicious actions) or pecuniary (coverage for lost wages or loss of potential income).
Too many victims and civil attorneys overlook potential avenues for recovering damages from perpetrators and mistakenly believe that perpetrators have no assets from which to collect judgments. While a perpetrator may seem insolvent on the surface, there are several sources that can satisfy civil judgments. Some sources of income are:
- Wages Benefits (pension payments and annuities)
- Unearned income (dividends, interest, gifts)
- Trust fund income
- Tax refunds
- Government entitlements
- Personal property (cars, jewelry, etc.)
- Real property (home, land, etc.)
- Bank accounts
- Financial holdings (stocks, bonds, etc.)
- Partnership interests
- Future interests in real and personal property through wills, trusts, etc.
Even if a perpetrator does not appear to have any assets from which to collect a judgment, he or she might be insured. Generally, in order for a victim to collect from an insurer, four conditions must be met:
1) The perpetrator must be insured;
2) The policy must provide coverage for the act committed by the perpetrator that caused the victim harm;
3) The insured perpetrator must be found liable to the victim or plaintiff; and
4) No exclusions can apply for the particular liabilities alleged unless there are applicable exceptions to the exclusions.
Civil litigation can offer victims monetary awards essential to their physical and mental recovery. However, the victim needs to carefully weigh the advantages and disadvantages of civil legal remedies in order to make an informed decision before filing a lawsuit. Contact a civil attorney through Findlaw to find out if civil legal remedies for a crime are right for you.