Civil Court Actions for Victims and Survivors

The lives of crime victims and survivors of homicide victims are abruptly shattered by perpetrators. Any single crime may randomly result in physical injury, the loss of a loved one, psychological trauma and the loss of property. Regardless of the type of crime or its degree of impact, all victims experience a loss of all sense of personal control over their lives.
Many victims, as a result of crime, are also suddenly immersed in the complexities of a two-party criminal justice system that does not include them as a formal party. While service providers, State legislatures and prosecutor offices throughout the country have made great strides during the past decade in recognizing victim needs and in protecting victim rights, the crime committed is treated by the criminal justice system as one against the state. Thus, the system is designed to protect and enforce the rights of society as a whole, NOT the individual rights of victims. Traditionally, it has functioned to convict, punish and rehabilitate criminals, not to assist victims. The role of the victim, at best, is simply one of providing the prosecutor with evidence to convict the alleged perpetrator.

In the criminal case, the prosecutor makes all decisions. He or she decides whether to file charges against an alleged perpetrator (defendant) based on an assessment of the legal adequacy of available evidence. Even though in some states the victim has a right to be consulted on plea agreements, it is largely within prosecutor discretion to decide whether to forgo a trial by accepting a plea on lesser charges in exchange for an admission of guilt. The prosecutor is responsible for proving beyond a reasonable doubt that an alleged perpetrator is guilty of the crimes charged (i.e., proving at least to a moral certainty). Failure to carry this burden of proof results in acquittal. A myriad of considerations, unrelated to the crime victim's victimization, may and often do affect the consequences faced by a perpetrator as a result of committing a crime.

But even with a successful conviction on behalf of society as a whole, victims of crime are still left with great physical, psychological and financial losses. The tangible costs of crime to victims, such as medical expenses, mental health counseling, and lost productivity, are estimated at $105 billion annually. The intangible costs-the price of the pain, suffering, and reduced quality of life victims must endure-are even greater: $345 billion annually (Victim Costs and Consequences: A New Look, Washington, DC: National Institute of Justice, U.S. Department of Justice, 1996). Although some victims are compensated through state victim compensation or through restitution ordered as part of a sentence, these sources frequently fall short of covering all of the losses suffered by a victim and/or a family. In particular, restitution and state-funded compensation rarely, if ever, compensate victims for the diminished quality of life resulting from continuing pain and suffering. A judgment in a civil suit can provide such compensation as well as secure important preventative measures that would not result from a criminal action alone.
It is primarily within the last decade that civil litigation has emerged as a meaningful option for crime victims and as a specialized area of attorney expertise. High-profile cases in recent years have highlighted the financial compensation and other benefits that are available to crime victims who pursue civil litigation. In one case, $33.5 million was awarded to the families of two murder victims, and in another, $5.2 million was awarded to a woman sexually assaulted at a Las Vegas convention. Other successful civil lawsuits were brought by the parents of a slain foreign exchange student, and by two adult sisters who were sexually abused as children. In just the last few years, issues of child sexual abuse in the Catholic church have dramatically raised the consciousness of not only the public and the legal community about civil legal remedies for victims, but the victim service field as well.

In addition to compensating victims financially for their losses, civil remedies empower victims to exercise their rights. In a civil lawsuit, the victim rather than the state is in control of essential decisionmaking. Victims decide whether or not to pursue a civil suit, and they choose their own attorneys. The burden of proof is lower in civil cases than in criminal cases, requiring a less rigorous measure of the evidence to establish liability. A defendant can be required to testify at trial, if subpoenaed. Furthermore, victims have a voice in the outcome of a civil action by deciding whether or not to accept a settlement offer.

Larger Effects
Civil litigation can have preventative effects as well. Civil suits may be brought against other parties involved in victimization. For example, a hotel or office building may be sued by a rape victim for security violations that allowed the attack to occur. This kind of lawsuit may change the way the defendant and others conduct business, reducing the possibility of further crimes.
Victim law suits against third parties can be credited for society's widespread concern over crime prevention and the implementation of standard security measures such as the installation of door peepholes in hotel doors, the provision of adequate lighting in apartment common areas, and the employment of security guards on college campuses. 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.

The overriding goal of both first and third party civil suits is to make the victim "whole" again. Although this goal may never be fully accomplished, a successful civil suit can help to cover expenses incurred as a result of the crime, encourage the adoption of societal safety practices, and restore confidence in the victim's ability to control his or her own destiny. Civil remedies provide unique opportunities for victims to recover for both economic and non-economic losses. At a minimum, if a victim is dissatisfied with the results of a criminal prosecution, if the perpetrator fails to meet restitution obligations, or if state compensation does not cover all costs incurred as a result of the crime, then civil litigation is a course of action worthy of consideration.
Basically, the tie between criminal actions and civil actions occurs because most criminal acts are also torts (civil wrongs) which have resulted in personal injury and loss of property. Causes of action in tort; such as assault and battery, wrongful death, negligent or the intentional infliction of emotional distress, false imprisonment, among other specific actions; provide the legal framework for civil actions brought by victims against perpetrators.

A tort may be the result of either an intentional act or inaction (failed to do something that they should have done), or the result of negligence. Both types of torts have several common legal elements.

First, the defendant must have had an intent to harm the plaintiff or the defendant must have negligently failed to perform a duty owed to the plaintiff (negligence). Second, the defendant must have committed the tortious act alleged in the civil complaint. And third, that act must have been the cause of the plaintiffs injury; the plaintiff would not have been injured but for the defendant's action or inaction.

The damages awarded for the injuries sustained 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).

If you or a loved one is considering a lawsuit against someone who has victimized you, we strongly recommend that you check out a book by Kenneth Abraham, Professor of Law at the University of Virginia titled Forms and Functions of Tort Law: An Analytical Primer on Cases & Concepts. You can get an edition that's a few years old for less than $5.00 and learn a ton about how torts work, things people have sued for and won in the past, and get a good idea of how to approach a case.

Types of intentional torts:
An assault occurs when a perpetrator puts another in fear of being injured and has the capability of inflicting injury. Assault is the threat - which may be committed verbally (they tell you they will or want to hurt you) or may be understood by actions (like picking up a weapon, even if they don't actually use it or point it directly at you).
A battery occurs when a perpetrator has intentional, offensive physical contact with a victim--an offensive, unpermitted touching.

A wrongful death action can be filed if it is alleged that a perpetrator killed another without justification or excuse - self defense being one of the most commonly cited reasons.
False imprisonment occurs if a perpetrator confines a victim against his or her will, such as in a rape or hostage situation. A victim does not have to be bound or held for any length of time, just that they are not permitted to leave a situation at will. False imprisonment charges are commonly seen hand in hand with sexual assault charges, but are becoming more and more common in domestic violence cases, for example when one party blocks a door with their body or grabs a partner to keep them from leaving.

Intentional, reckless infliction of emotional distress occurs when a perpetrator, by extreme and outrageous conduct, intentionally or recklessly causes someone emotional distress. Again, due to their very nature, many cases of sexual assault will assume that distress occured. In domestic violence cases, examples might include threatening, hurting or killing a pet, threatening to hurt a friend, child or family member of the victim, or threatening to or actually disclosing the HIV status or sexual orientation of the victim.

Finally, the intentional torts resulting in property damage include conversion (an unpermitted taking of another's property) and trespass (a wrongful entry upon the lands of another). Trespass might also include leaving notes on or inside cars, post office boxes, etc.
Torts based on negligence, rather than intent, may be brought against first party perpetrators (the person who committed the act) or third parties whose negligence contributes to the commission of the crime or tort. Third parties may, for example, be held liable for the negligent infliction of emotional distress or wrongful death in instances where their conduct results in an unintentional death of another. The test for determining whether such a third party defendant is liable for such torts is whether he or she failed in his or her duty to act as a reasonable person would have acted under similar circumstances. If a reasonable person would not have foreseen injury to another person as a result of his or her actions, then the alleged third party will not be held liable for injuries that result from such actions or inaction.

When third parties are held liable for plaintiffs' injuries, they generally are not subject to punitive damages. This is because they do not intend for the victims to be injured. However, since third parties are often organizations or corporations, such actions can sometimes offer the victim alternative potential sources from which to collect other types of damages which might not be collectable against the perpetrator.

For example, where there is a chronic disregard of security complaints brought to the attention of an innkeeper, a hotel guest who becomes a rape victim may be able to allege a complaint against the innkeeper as well as the innkeeper's security company whose surveillance system failed to detect the perpetrator and prevent his gaining access to the victim. Such actions may be filed by a victim even if the rapist is never apprehended. They usually require, however, prior notice to the third party of an existing, persistent problem-- a problem which the negligent third party chose not to rectify. Apartment complexes and school campuses are other commonly cited third parties to crimes against victims.

Facts surrounding any victimization may also suggest causes of action against parents of a young or mentally incapacitated perpetrator, co- conspirators or those who aid and abet, or against negligent entrustors. Proof of alternate party liability may be pursued under any of the following doctrines and theories:

The doctrine of parental liability, available in many states, holds parents civilly liable for the torts and crimes of their children under certain circumstances.

Actions based on a co-conspiracy theory allege claims against those who agree to a given crime and assist the perpetrators who actually commit the acts constituting the crime (co-conspirators). For example, someone who drives the offender to the scene of the crime, knowing what the offender plans to do; someone who allows a stalker to use their phone, knowing that their assistance is needed because the victim has blocked the usual numbers the offender uses or because there is a restraining order in place, or someone who provides tools or weapons used in the crime.

The doctrine of negligent entrustment extends liability to those persons who give, lend, or allow someone to use, or should have anticipated that a given person would use a dangerous instrumentality to injure another. Negligent entrustment arises, for example, when an adult allows a child access to a firearm and the child, in turn, uses the weapon to injure another. These theories of party liability can provide victims with multiple, viable sources from which to collect judgment awards.

Common Defenses
Defendants may attempt to fight back by saying that they had a legally accepted reason for their actions. For example, a defendant might say that they were acting in self defense, or in the defense of someone else. For negligence, a defendant might say that the injured victim contributed to their own injury, or that the victim was more at fault for what happened (contributory or comparative negligence). Assumation of risk is another common defense, wherein, the perpetrator says that either they were provoked into acting the way they did, or that the victim consented to whatever was happening, thus accepting the risk. Failure of the victim to file their case within the applicable time frame (set out by each state as statutes of limitations) may also provide the perpetrator with a viable defense.

The civil protections available to defendants in civil tort cases are less stringent than criminal procedural protections because the civil defendant does not risk loss of liberty through incarceration. In civil courtrooms, a defendant cannot take the Fifth Amendment; they must testify if called upon to do so. Rules allowing for the discovery and admission of evidence are more flexible; prior similar acts are often admitted if relevant, and perpetrators cannot escape liability by reason of insanity.

Civil Suits vs. Criminal Prosecutions
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; that is to say, he or she needs only to prove that it is more likely than not that the defendant is liable for the claims set forth in the complaint. This burden is less demanding than the one which must be carried by the criminal prosecutor--the burden of proving beyond a reasonable doubt that the defendant is guilty of the crimes charged.
While the victim has the option of proceeding with a civil action independent from the criminal prosecution, there are strategic considerations which affect both the criminal and the civil actions. For example, an early filing of a civil action may cause the criminal defense attorney to attempt to undermine the victim's credibility as a witness in the criminal case. Victim cooperation with the prosecution, as a witness, may be perceived by a judge or jury as cooperation based on an apparent monetary motivation. Since a criminal conviction may be used to support or even prove liability in a civil action, it may be in the victim's best interest to cooperate with the prosecutor on such matters as the timing of filing a civil action. Yet, too long a delay could very well jeopardize the victim's right to file a civil suit; i.e., the defendant may be able to say that you waited too long and that the statute of limitations has passed - meaning you have missed your window of opportunity for a law suit.

Generally, criminal charges translate into somewhat parallel civil causes of action. If a prosecutor obtains a conviction, a principle called collateral estoppel can often be used to establish tort liability in the civil case. Evidence proving criminal guilt ordinarily provides most of the evidence needed to prove that a tort occurred. If, however, the prosecution chooses not to prosecute or fails to convict a perpetrator, the victim should not be discouraged from considering a civil action. Since the civil burden of proof is less than the criminal burden, 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 innocent of the criminal charges. Plaintiffs in civil suits are assisted in their efforts to meet this lower burden of proof by flexible discovery rules allowing for a broad, pretrial inquiry into facts surrounding the event.

Disadvantages to Consider
To make an informed decision as to whether civil litigation is an appropriate course of action, victims need to be fully informed of both advantages and disadvantages of filing a civil suit.
The disadvantages are various, and depending on the factual scenario, they may be numerous, and perhaps overwhelming. Some of the disadvantages are as follows:
If the perpetrator has no assets, is not likely to come into any assets, and is not insured, then there may be limited prospects for a victim to collect on a judgment.

While some evidence, such as transcripts or depositions, may be transferable from the criminal court to the civil court, the victim may still have to offer testimony and confront the perpetrator during civil proceedings. He or she may have to repeat details pertaining to the victimization, and cope with the resulting psychological stress.

Because many jurisdictions have case backlogs, civil cases may be in litigation for years before a decision is rendered. Moreover, the civil justice system is full of the failings of any human-designed system and can be wrought with frustration and disappointment.
Victims may enter into contingency fee arrangements with civil attorneys to pay for services, but most often such arrangements do not relieve victims from having to pay for other litigation costs such as filing fees, deposition costs for obtaining expert testimony, etc.
If a judgment is obtained and collected, the victim will usually have to pay a percentage of the judgment to his or her attorney and may also have to reimburse the state for any crime victims compensation amounts received.

Victims can lose their civil suits, or receive minimal compensation.
It's important to be aware of these disadvantages so as not to allow yourself to become re-victimized. Hopefully this site has highlighted the advantages of civil litigation so that you will at least consider if this might be a good course of action for you. Civil litigation can offer victims monetary recovery essential to their physical and mental recovery; it can serve to further punish the perpetrator through the device of punitive damages; and it encourages potential third parties to take measures to prevent crime. Most importantly, though, civil litigation offers victims an opportunity to take control over legal matters pertaining to perpetrators and is an opportunity to make those perpetrators personally accountable to them.

Carefully weigh the advantages of civil litigation, such as empowerment and financial relief, as well as the above-cited disadvantages, so that an informed decision can be made as to whether the costs of pursuing this type of remedial relief are worth the potential gains.