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Crime Victims Legal Rights

Nearly 30 million Americans are victimized in a crime each year. Traumatized by the events physically, emotionally, and financially, crime victims are often left unable to afford medical procedures, physical rehabilitation, counseling, lost wages, and property damage. All this is the result of the criminal acts of another. It is estimated that crime costs our society over $450 billion annually.

Restitution:

Often, the court will order the convicted criminal to pay restitution to the victim and even the victim’s family or survivors—those who have become responsible for the maintenance and support of a victim as the result of a crime. However, this restitution is not always collected—even when ordered by a court. A number of factors cause this: lack of enforcement, limitations on the types of damages included in restitution, etc. Once again, the victim and their family suffers as a result.

State Crime Compensation:

Crime victims, their family, and successors may be able to seek restitution through the California crime victim compensation fund. This fund’s responsibility is to reimburse victims for certain expenses and losses resulting from the crime, such as funeral and burial expenses, medical bills, counseling fees, rehabilitation fees, prescription costs, lost wages, and other out-of-pocket costs incurred by the victim. The victim or applicant may be able to be reimbursed for such damages, minus those covered by other sources such as insurance. There are a number of limitations, so it is important to speak to a California Victim Compensation Program representative and an experienced crime victim attorney to find out if you qualify.

Civil Actions:

If state-ordered restitution and state compensation programs are not enough to cover expenses incurred due to the crime, a victim may pursue a civil lawsuit to gain more complete compensation from losses incurred.

Should you file a lawsuit?

There are many benefits for victims and their families when file a civil action:

Control of the Case:

One of the downfalls to a criminal case is the lack of control and participation of the victim (or the victim’s family) in the justice system. A civil lawsuit makes the victim or the victim’s family a party to the civil case, are unable to be excluded from the courtroom, and aid in making the final approval of settlement proposals.


Who is eligible for compensation?Those
injured as a result of
another committing:
  • Assault with a deadly weapon
  • Battery (when there is injury or threat of injury)
  • Child abuse
  • Child sexual assault
  • Child endangerment
  • Child abandonment
  • Domestic violence
  • Drunk Driving
  • Hit and run
  • Vehicular manslaughter
  • Murder
  • Robbery
  • Sexual assault
  • Rape
  • Statutory rape
  • Stalking
  • Sexual battery
  • Unlawful sexual intercourse
  • Terrorism
  • Other crimes that result in physical injury or a threat of physical injury to the victim

 

 

 


Compensation:

Victims, their families, and beneficiaries, may receive greater compensation for their pain and losses if they pursue a civil lawsuit. Victims may receive compensation for missed work, medical expenses, and even emotional damage suffered as a result of the crime.

Justice:

Most victims and their families seek justice and accountability to resolve their pain and emotional suffering. In civil suits, offenders are held directly accountable for the victims. Victims are given their “day in court” through this civil lawsuit—this is regardless of whether there was a criminal conviction or any prosecution at all.

Prevention of Crime:

Victims may sue other responsible parties in addition to the perpetrator in question under a civil lawsuit. The crime’s location may present other potentially guilt parties: apartments, hotels, and shopping centers may have failed to provide appropriate security precautions and measures perhaps because they see these expenses as unnecessary. Businesses will opt to upgrade their security instead of combating the expensive lawsuit. In essence, your simple measures result in the increased protection and security of public places.

Knowing the Difference: Civil vs. Criminal Justice:

There are many differences between criminal and civil court systems in the state of California. In civil cases, the victim controls the essential and important decisions which shape the case—and ultimately its outcome. Essentially, it is the victim that must decide whether to sue, accept a settlement offer, or go to trial.

A Look at the Criminal Justice System:

The criminal justice system begins almost immediately after the crime occurs—the crime must be reported to law enforcement. The offender may be prosecuted if charges have been filed and an arrest made. In this case, the offender has not made a crime against you, but against the State of California—since they broke the law in the process of hurting you or your loved one. The victim is treated as a witness to the crime, and will most likely be called to testify at the trial. They testify on the side of the prosecution—the State of California. One must keep in mind that although the prosecutor may be helpful and supportive of the victim, they ultimately represent the State of California and their interests.

The goal of the criminal justice system is to judge the innocence or guilt of accused offenders. When these offenders are found guilty, the criminal justice system will make attempts or punish or rehabilitate them.

A Look at the Civil Justice System:

Unlike the criminal justice system, the civil justice system does not attempt to determine the innocence or guilt of an offender. In addition, offenders are not placed in prison. Instead, a civil court will determine the offender’s relationship to the victim—ultimately, whether the offender is liable for the injuries sustained as a result of the crime.

The findings of a civil court usually require the offender to pay the victim or the victim’s family or benefactors monetary damages. The civil justice system essentially helps victims recover monetary damages caused by the crime. The victims and their families are also provided with a sense of closure and justice that criminal courts do not always provide. Offenders are not just held accountable for their crimes against the state, but their accountability to crime victims as well.

Burden of Proof:

Liability must be proven by preponderance of the evidence under the civil justice system. In essence, this means that one side’s evidence is more persuasive than the other’s. The plaintiff (a.k.a. the victim and their attorney) must prove there is a greater chance (i.e. more than 50%) that the accused committed all the elements of the crime in question. This percentage is much larger than what is required in a criminal case to prove liability or guilt—“proof beyond a reasonable doubt.” Sometimes, an offender may be found innocent in the criminal justice system, yet still be found liable in the civil court system.

A recognizable example of this situation is the O.J. Simpson case, where Simpson was prosecuted for the murder of his former wife, Nicole Brown and her friend, John Goldman. In 1995, the criminal justice system found Simpson “not guilty,” yet the families of Nicole Brown and John Goldman filed a civil wrongful death lawsuit against him. Simpson was found liable for the deaths of Brown and Goldman in 1997. The families were awarded $33.5 million in damages as a result of the civil case. A criminal conviction is never required to bring about a civil court action.

Criminal vs. Civil System Basics:

  1. Criminal cases hold the defendant accountable to the State of California.
  2. Civil cases hold the defendant accountable to the victim of the crime.
  3. In criminal cases, the State of California prosecutes and controls the case. The victim has little or no say in its initiation and proceedings.
  4. In civil cases, the victim both initiates and controls the proceedings of the case.
  5. In criminal cases, the victim is merely considered a witness to the crime. While the victim may be permitted to participate in the criminal justice process under a set of Victim’s Rights, they may not direct prosecution or veto decisions made by the prosecutor.
  6. In civil cases, the victim is an active party in the proceedings, is entitled to relevant information related to the case, and can make important decisions about the direction of the case.
  7. In criminal cases, the State of California (the prosecution) must prove that the accused is “guilty beyond a reasonable doubt.”
  8. In civil cases, the victim’s attorney must prove that it is more likely than not that the accused is liable for the injuries or crime committed upon the victim.
  9. In criminal cases, the accused is presumed innocent until proven guilty.
  10. In civil cases, the victim and accused appear as equals. None are presumed innocent until proven guilty.
  11. In criminal cases, the perpetrator is subject to punishment if proven guilty—this may include fees, community service, or jail time. They are held accountable to the state. Unless the court orders the defendant to pay restitution to the victim, the victim will receive no reimbursement for out-of-pocket expenses. In addition, the court cannot order restitution for the victim for non-economic damages (i.e. emotional wellbeing).
  12. In civil cases, the perpetrator will owe an obligation to the victim and/or the victim’s family if found liable. This liability may include funds to compensate the victim for medical expenses, rehabilitation fees, psychological damage, injured family relationships, and lost wages as a result of the crime. A civil court can also order the offender to pay for non-economic damages suffered by the victim.
  13. In criminal cases, the State of California cannot initiate a second prosecution if the accused is found not guilty.
  14. In civil cases, the victim may sue the accused regardless of whether they have been found guilty in the criminal justice system.

 

Civil Suits—Parties Involved:

The Plaintiffs:

Plaintiffs consist of half of the key players in a civil suit—they are those who file. It may be the victim, the victim’s family, or the victim’s benefactor. They control the procedure in a civil lawsuit, and are entitled to all information relating to the case. They also make decisions, including settlements. If the victim were a child, the plaintiff may be the parent or legal guardian of the victim.

Family Members:

Family members may bring a civil suit for the crime victim. Eligible family members include parents, spouse, children, or siblings of the victim.

Defendants:

The plaintiffs bring the civil action against the defendants. They may be the perpetrators of the crime, those who assisted the perpetrators, or organizations whose negligence contributed to the crime in some way. The latter may be a third party—often a business or public location.

Offenders:

Those who committed the original offense are deemed offenders. They are given this title whether or not they were found guilty within a criminal court.

Third Parties:

Third party defendants may be held liable in some civil lawsuit cases. Third parties did not originally commit the crime in question, but they may have helped facilitate or contribute to the crime. Examples include:

  1. Landlords are often held liable for negligence in maintaining or securing the property—inadequate lighting, faulty stairs, poor security measures, and proper locks on windows and doors.
  2. College may be held liable for inadequate security, including a lack of trained security guards, failure to notify students of campus assaults or leaving students open to victimization.
  3. Shopping malls are held liable if they do not employ security guards (even in regions where attacks are unlikely), have inadequate lighting in the parking lot, or have faulty alarm systems.
  4. Those who allow children and minors access to firearms are held liable for damages. Other dangerous weapons and potential weapons are considered.
  5. Child care centers, churches, and community centers may be held liable for not performing background checks on their employees or not publicizing abuse incidents.
  6. Bar or tavern owners are held liable for continuing to serve alcohol to inebriated individuals—these people may cause subsequent injuries or even death in drunk driving incidents.

 

Statute of Limitations:

There are always time limits when filing law suits and other legal matters in the State of California. It is important to remain aware of these limits and perform all filings well in advance. Any suits filed after the expiration of the statute is “time barred,” and cannot be processed by the State. Special circumstances do arise for cases involving child victims and victims with repressed memories, where the time in which victims file may be extended. To review the statute of limitations for your particular situation, it is important to speak to an experienced civil lawsuit attorney as soon as possible.

Civil Lawsuits—Types:

Civil actions may be brought under a variety of claims. These may include battery and assault, wrongful death, intentional or negligent infliction of emotional distress, or pure negligence.

In civil cases, be aware that wrongful acts or crimes are referred to as torts. For most offenses of this nature, there is a corresponding tort for which a crime victim may file a civil suit:

  1. Assault—A victim fears immediate injury whilst the perpetrator/defendant has the ability to inflict such injury.
  2. Battery—Without their consent, battery is the intentional physical contact with a person. Battery includes sexual assault, molestation, rape, forced sodomy, fondling, malicious wounding, or attempted murder.
  3. False Imprisonment—Holding an individual for a period of time against their will is called false imprisonment, and often occurs in rape and kidnapping cases.
  4. Wrongful Death—Murder, manslaughter, and vehicular homicide are all considered wrongful death—death caused by another person, occurring without excuse or justification.
  5. Intentional/Reckless Infliction of Emotional Distress—The offender causes emotional distress or anxiety through offensive and extreme conduct. Stalking cases often include this type of tort.
  6. Conversion—Destruction or theft of money or other personal property is known as conversion. This includes embezzlement, concealment, and larceny.
  7. Fraud—With the intent to deceive the victim, fraud in the misrepresentation of facts that result in damages. White collar economic crimes such as telemarketing schemes and criminal fraud are examples of this tort.
  8. Negligence—Negligence is defined as the failure to “use such care as a reasonably prudent person would under similar circumstances.” This failure causes the severe injuries to the victim.

 

Perpetrator Defenses:

Defendants in a civil lawsuit may employ several defenses to avoid civil liability. Examples include immunity, assumption of risk, and self-defense.

  1. Self-Defense—Defendants may claim that their actions were acceptable and justified because they were either defending themselves or someone else.
  2. Comparative/Contributory Negligence—The accused claims the victim’s own negligence contributed to or caused the victim’s injuries.
  3. Immunity—Sometimes, government agencies, government employees, and other agencies or groups are given immunity from civil liability under particular circumstances in the law. For a detailed list, consult an experienced California civil lawsuit attorney.
  4. Assumption of Risk—The defense claims the victim knowingly placed themselves in danger, and should therefore not be held liable.

 

Victim Privacy:

It is of utmost importance for crime victim attorneys in California to protect the privacy of their victims. Their names, contact information, and other personal data will be kept out of public records by filing lawsuits under pseudonyms, such as John or Jane Doe. Victims, their families, and benefactors may also use confidentiality agreements with the offender or defendant—they may file cases “under seal,” which means “closed to the public.” They may also decide to videotape depositions.

Filing a Civil Suit:

The first step in beginning a civil case is filing the complaint with the local court. The complaint is designed to explain the facts of the case in question and announce what legal claims are being made. A complaint is always written by an experienced civil lawsuit attorney, with the assistance of the victims, witnesses to the crime, and any required specialists whose practice applies to the case (i.e. accident reconstructionists, financial planners, or doctors).

After the complaint has been received by the court, the defendants have a certain period of time to file a document called the answer.  This document is essentially a well-versed response to the claims and accusations made in the complaint. They may set forth their version of the facts, applicable defenses, and present any additional information that not have been mentioned in the complaint.

An essential part of the civil case’s process is the discovery—where either side may request information concerning the case’s details and facts.

Parties may also file motions asking the court to throw out certain claims on defenses—they may also request the court to dismiss the entire case.

Discovery:

Discovery is the process by which each side asks the other side for information or documents relating to the case. In civil lawsuits, discovery involves a thorough investigation of the facts, circumstances surrounding the case, and an explanation of the legal claims being made. This step may also involve the interviewing of witnesses, experts, obtaining other documents, and questioning all relevant parties while under oath. The following investigation may include a review of police records, obtaining photographs of the crime scene, and informal interviews with eye witnesses.

The Interrogatories:

A list of questions sent to the opposing party, interrogatories are usually limited in number by the local court rules where the suit was filed. Requests for interrogatories and applicable documents must be made within a specified amount of time, so it is integral to work closely with an experienced civil lawsuit attorney in completing the discovery phase of the suit.

Request for Production of Documents:

Document requests made by either party are formal procedures made through the court within the discovery phase. They are requests to produce documents and other materials relevant to the case.

Depositions:

A deposition is another way for obtaining information in the pretrial portion of a civil case. A party’s attorney may question opposing parties and potential witnesses under oath, where it is always transcribed. These transcripts may be used during the trial and referred to if this witness approaches the stand. They may also be used if the witness in question is unavailable to testify in person.

Once these documents have been produced, all interrogatories are completed, and depositions are finished, both the plaintiff and the defendant know much more about the case. Parties may at this point engage in negotiations to settle the case.

Trial:

If both parties are unable to settle the case on their own or with mediation, the case is taken to trial within a court. If the plaintiff has met its burden of proof and the accused (defendant) has not successfully asserted a defense to the claim, the plaintiff will win the trial. In this situation, the judge or jury will award damages to the victim—unless the defendant appeals.

If the plaintiff has not met the burden of proof or the defendant has successfully asserted a defense, the defendant wins the case. In this situation, the case is over unless the plaintiff appeals.

Damages:

Damages refer to the amount of money or restitution awarded to the victim by the defendant, if the plaintiff wins the civil suit.

There are two types of damages: compensatory and punitive. Compensatory damages aim to cover losses suffered by the injured party. In particularly malicious cases, punitive damages are assigned; these punish or deter criminals or third parties involved in the case.

Judgment & Enforcement:

Unfortunately, pursuing and obtaining a civil judgment is only half the battle for victims and their families. Winning plaintiffs find it difficult to obtain the money awarded by the court since many defendants will not or are unable to pay judgments entered against them. Other potential sources of payment do exist, so it is important to explore these options. Seek the assistance of an experienced civil lawsuit attorney when confronted with this matter.

What Happens When the Offender Sues the Victim?

In some instances, perpetrators countersue the victims. They may take this step in order to intimidate or harass victims—urging them to drop charges or withdrawal their civil suit.

These suits may be filed in response to the victim’s complaint, in addition to new answers to the complaint. Offenders may also file them in response to the criminal charge. A victim’s best defense is truth—a true combatant to offenders’ claims of defamation or slander.

Getting a Lawyer:

The only way to fight a difficult legal battle is with the assistance of an experienced and committed crime victim attorney in California. These specialized attorneys typically handle personal injury, premises liability, professional malpractice, and wrongful death cases on behalf of the victims. Careful and research and diligence are required to find a truly qualified attorney to represent your crime victim case.

Both the attorney and plaintiff (victim or victim’s family) must be able to fully and completely communicate with one-another—it is the essence for producing the most effective client-attorney relationship. Victims should feel as comfortable as possible when relating gruesome or difficult details of the crime, for such disclosed material only further aids the case and your ability to win the civil suit. In addition, attorneys should be able to clearly explain the tiered aspects of legal proceedings to their clients, in addition to being responsive to the victim’s needs and requests.

Prior to making an arrangement, victims should fully understand their agreement with their attorney. It is important to ask questions about retainers and other legal contracts with crime victim attorneys.

Victims and their family should try to cooperate as fully as possible with their attorneys in answering questions, filling out paperwork, and proceeding further with the case. This type of cooperation is necessary for the attorney to successfully represent the interests of their client. Victims should be open and honest with their attorney, while attorneys should remain respectful, understanding, and responsive to their clients.

What Your Attorney Will Need:

Victims should be well-prepared to answer detailed and often-difficult questions regarding the case when meeting with an attorney. This information will be used to evaluate the case and develop a plan for pursuing the next step in the civil justice system process.

Attorneys may request the following information:

General:

  1. Time and date of the crime
  2. Location of the crime, including an address and description of the area
  3. Information of how the offender gained access to the victim
  4. Names and contact information of witnesses to the crime
  5. If a police report was filed, attorneys will require a copy of the report (if available), the name of the officer who filed the report, the office where the complaint was filed, the names of any detectives or investigators assigned to the case, the report number, and any statements taken as part of the investigation of the crime
  6. If this was a criminal case, the attorney will need the name of the prosecutor, the current status of the criminal proceedings, and a description of the investigation thus far
  7. If a third party may be involved, the attorney may request more details surrounding the crime, information about security, or where it was committed

The Offender:

  1. If the victim knows the offender, the attorney may ask their relationship, any names and contact information for the offender, a social security number, place of employment, and any other pertinent information about the offender
  2. If the victim does not know the offender, the attorney may request a physical description

Damages:

  1. A copy of the medical records of the victim, including degree of physical, psychological, and emotional injuries
  2. An estimate of medical costs associated with the crime
  3. Names and contact information for the doctor or hospitals that attended to the victim
  4. Description of any property damage as a result of the crime
  5. An estimate of amount of time lost from work—this includes the victim and the victim’s spouse—as a result of the crime
  6. Amount of money received from insurance, workman’s compensation, or other sources

Conclusion:

The civil justice system gives victims and their families a chance to get what they really want after a traumatic event—justice for the perpetrator. Regardless of whether a criminal trial was handled, the civil suit is placed into the hands of the victim and their attorney in order to bring restitution and closure to this painful chapter in their lives.

 

 

                                
 

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Copyright Estey & Bomberger, LLP 2007

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