Chapter 5 Financial Assistance for Victims of Crime

Section 1, Civil Remedies

Abstract

There are two distinct jurisdictions for justice relevant to victims of crime: criminal and civil. Criminal courts deal with that aspect of the justice system that determines guilt or innocence with regard to crime and metes out criminal sanctions. The civil justice system can be utilized by victims to pursue their own private actions against perpetrators for the recovery of monetary damages as well as for justice. This section discusses the civil justice system, core elements and legal aspects of civil litigation, and how victim service providers can play a significant role in helping victims who seek justice through civil litigation.

Learning Objectives

Upon completion of this section, students will understand the following concepts:

• Distinctions between the criminal and civil justice systems.



• The basics/terminology of civil litigation.



• Types of lawsuits typically brought by victims.



• Defenses to civil litigation.



• Proving damages in civil lawsuits.



• The benefits and limitations of victim civil litigation.



• Recommendations regarding civil remedies to victim service providers and allied professions.

Statistical Overview

• Personal crime is estimated to cost $105 billion annually in medical costs, lost earnings and public program costs related to victim assistance. When pain, suffering, and reduced quality of life are assessed, the cost increases to an estimated $450 billion annually. Violent crime results in lost wages equivalent to 1 percent of American earnings (Miller, Cohen, and Wiersema 1996).



• Female victims of intimate violence annually suffer $61 million in medical expenses and an additional $89 million in broken and stolen property (Ibid.).



• Crime victims in 1992 lost $17.6 billion in direct costs, according to the National Crime Victimization Survey (NCVS). These costs included losses from property theft or damage, cash losses, medical expenses, and amount of pay lost because of injury or activities related to the crime (Klaus 1994, 1).



• Economic loss of some kind occurred in 71% of all personal crimes. For crimes of violence, economic loss occurred in 23% of victimizations. Household crimes of burglary, theft, and motor vehicle theft involved economic loss in 91% of all victimizations (Ibid., 1).



• During each fiscal year, 1996 and 1997, U.S. district courts terminated an average of 296,000 cases. Approximately 84% of these cases were civil, and 16% were criminal cases (BJS 1999).



• Of the nearly 500,000 civil cases terminated during fiscal years 1996-97, 19% (96,284) were tort claims in which plaintiffs claimed injury, loss, or damage from defendants' negligent or intentional acts (Ibid.).



• Property valued at $15.6 billion was stolen in connection with all Crime Index offenses in 1994 (FBI 1995).



• During 1996, federal courts alone ordered more than $1.5 billion in monetary restitution and fines (BJS 1997).

Introduction

While the physical and psychological impact of crime may be considered the most obvious and serious tolls taken by any crime, the financial impact can be devastating. The financial losses incurred as a result of crime (unforeseen medical expenses, psychological counseling costs, and the need to replace stolen property) can be as debilitating as any other type of injury suffered by crime victims.

OVERVIEW OF LOSSES SUFFERED BY VICTIMS OF CRIME

Victims of crime suffer tremendous losses as a result of criminal victimization. As noted above, annual losses of $450 million are associated with major violent crime victimizations, and approximately $40 billion is attributed to monetary losses from fraud and other economic crimes. Financial measures of losses attributed to crime victimization are only crude tools used to assess the true damages suffered by victims in the hope of somehow lessening the impact of the crime. The contribution of such a financial analysis aids in both impressing upon the criminal justice system the severity of the victimization and gauging what measure of financial recovery might help victims in addressing their losses resulting from crime. It must be emphasized, however, that money damages alone are never a complete measure of the harm caused by crime, but just a useful tool in addressing certain aspects of the aftermath of criminal victimization.

The losses suffered by victims range from direct out-of-pocket expenses, such as unreimbursed medical costs and lost wages, to costs incidental to the crime and the victim's participation inthe criminal justice system, such as travel and related expenses. In addition to these more immediate and short-term costs of crime, victims often incur long-term costs due to the need for ongoing mental health support and/or support as a result of permanent disabilities. In addition to these more tangible types of losses, victims' losses can also be in areas termed "intangible" such as pain and suffering or the loss of the enjoyment of life and other such losses.

Accurate and complete documentation of financial losses are required in the pursuit of financial remedies for victims to ensure valid recoveries for victim losses. This is true regardless of the form or forms of financial recovery victims will seek or be eligible to obtain (i.e., any combination of civil litigation recovery, restitution, or compensation). Service providers can provide critical assistance to victims in helping them acquire and maintain these records, or, at least, by providing victims with guidelines about the types of documentation that are needed to depict their out-of-pocket and projected expenses for the future.

Civil Versus Criminal Justice

Criminal and civil are the two major and distinct components of America's justice system. The criminal justice system determines guilt or innocence in regard to crimes and metes out criminal sanctions. The civil justice system, among other things, permits crime victims to seek civil remedies for the physical and psychological injuries they have suffered as a result of criminal acts, permitting vindication of their rights and recovery of financial reparations from offenders.

In some ways, the civil justice system is complementary to the criminal justice system. However, civil justice has numerous distinctions, many of which may be quite beneficial to victims of crime. The discussion below will provide an overview of the civil justice system that is basic to a victim advocate's understanding of this process.

Civil litigation has become increasingly important for victims for various reasons. First, victims can encounter great financial distress due to their victimization. Medical and therapy bills mount up. Often jobs or income, as well as property and other assets, are lost. The civil justice system provides a mechanism for victims to seek recovery for losses resulting from their victimization.

MECHANICS OF A CIVIL ACTION

Numerous activities occur prior to the commencement of a legal action, perhaps the most important of which is engaging the counsel of a competent attorney. This also illustrates the first significant distinction between the civil justice system and criminal justice system for victims-in the civil process victims hire their own attorneys to pursue their actions.

A second important distinction between civil and criminal procedures relates to who the "plaintiff" is. In criminal court, the prosecutor is a government employee who brings an action on behalf of the government entity against the alleged perpetrator. In civil matters, thecase is brought by the victim directly against the perpetrator and is typically captioned "Victim v. Perpetrator" as opposed to the typical criminal action caption of "State v. Perpetrator." The victim is in control of the civil legal action as opposed to being a secondary party, at best, to a criminal prosecution.

KEY ASPECTS OF CIVIL REMEDIES

Standing: Who can sue? Standing is a legal concept that refers to whether an individual has a legitimate right to address his or her complaints to the court. In order to have standing, one must generally be able to demonstrate that an injury has been suffered, be able to prove a sufficient personal interest in a cause of action or controversy, or be a necessary party in that his or her involvement is necessary to a fair and just determination of the outcome of the case.

Unjust enrichment: Who can recover? One particularly important legal doctrine is called unjust enrichment. Unjust enrichment dictates that someone should not be allowed to benefit from their own wrongdoing. For example, someone who commits a murder should not be permitted to receive the proceeds of the insurance policy if he or she was named as the beneficiary of the decedent.

Many times unjust enrichment, which is a common law doctrine (i.e., based on established caselaw), is also provided through statutory schemes sometimes referred to as slayers statutes. Slayers statutes, similar to their common law counterpart slayers rules, would prevent individuals from profiting from their crimes by making it impossible for them to inherit the proceeds of an estate of someone they have killed.

Also, many states have rules that provide immunity, referred to as interspousal immunity, between married individuals that prevents them from suing each other, for example, in cases of assault. However, courts are increasingly rejecting the use of interspousal immunity as a defense for domestic violence or similar crimes.

Burden of proof. One critical aspect of litigation is the threshold one has to establish in order to prove a case, otherwise known as the burden of proof. There is a major distinction between criminal and civil burdens of proof. In criminal courts, the beyond a reasonable doubt burden of proof is a very high burden, which is often described as having to prove your case to a very high degree of moral certainty. If a member of the jury has any reasonable doubt, which essentially means doubt that is formulated well enough that it can be expressed and supported by reason, that person should vote for acquittal of the defendant.

The burden of proof is much lower in a civil trial. The civil justice system uses the mere preponderance of the evidence burden, which is sometimes expressed as 51 percent level of proof. Civil jury instructions, which are given to jurors by the judge prior to their deliberations on a case, often describe this as the "scales of justice tipping ever so slightly in the direction of one party versus another," meaning that the jury must find for the party who is supported by the weight of the evidence, even if this is only slightly so. This difference inburdens of proof can often result in a defendant being acquitted (found not guilty) of criminal charges, yet having a judgment rendered against him or her in a corresponding civil action.

CIVIL LITIGATION CAN EMPOWER VICTIMS

The recovery of financial losses, although extremely important, is not the only reason that victims look to civil litigation. Civil litigation can empower victims since they occupy the status of plaintiff, not merely witness. Also, going to civil court often allows victims, who so choose, to publicize the acts of the perpetrator. Further, the recovery of financial benefits reinforces the notion that the victim did suffer significant injuries and that it was the perpetrator who was responsible for injuring the victim and, therefore, made to pay for them.

CIVIL LITIGATION AS A DETERRENT TO CRIME

Civil litigation often works as a method of crime prevention. When perpetrators, or other negligent parties involved in creating the conditions of victimization, are made to pay for their violent acts or negligence, these acts are often not repeated. For example, when hotels are ordered to pay money damages for their lack of adequate security that caused rapes or assaults to occur, they often respond by improving security to avoid future lawsuits. This is true of many other institutional or third party defendants who have had to pay damages in negligence suits.

Civil Litigation Basics

As stated above, the civil justice system is in many ways similar to the criminal justice system with which most victim advocates are more familiar. To the extent that the two systems differ, much of this is reflected in the different terminology employed by each. As most victim advocates and service providers will be more familiar with the nomenclature of the "criminal side," a glossary of terms from the civil side is provided at the end of this section. Certain basic terms and phrases, however, will be defined here to help the reader to understand the following text.

In a civil suit, the perpetrator is still referred to as the defendant, but the victim is now called the plaintiff. Essentially, a legal action is commenced by the plaintiff (victim) against the defendant (perpetrator or negligent third party) by serving lawsuit papers and filing them in court. Subsequently, a period of investigation called discovery occurs whereby the details of the matter are investigated by both sides in an effort to provide background information to bolster arguments in a way most favorable to their respective position in court.

At some point in time a trial is possible, although the vast majority of civil legal actions are settled out of court. In the event of a trial, a verdict is ultimately reached. The verdict is typically returned by a jury that has sat through the trial listening to the facts as presented in evidence. If the verdict results in a judgment for the plaintiff/victim, then he/she will attempt to collect the amount now owed to him or her. If the verdict is in favor of the defendant, the plaintiff/victim has lost the trial.

Often questions arise as to any direct relationships that exist between the civil and criminal justice systems. For the most part they are, at least theoretically, separate and distinct systems. However, it would be naïve to think that despite this structure, there are no practical effects of these systems on each other. For example, a prosecutor will often be very interested in the victim's current status or future intentions regarding filing a civil suit. This is because his or her trial strategy may need to involve countering the obvious defense claim that the criminal complaint is being pressed by the victim in the hope that a criminal conviction will forward a civil complaint. Prosecutors don't want the jury to believe the defense's predictable claim that "It's all really about money, isn't it?" Also, the victim will need to take into account the status or the outcome of the criminal proceedings and the effects of these on the approach he or she should take regarding a civil action.

Sometimes the criminal-civil connection is more direct. For example, the legal doctrine of collateral estoppel provides that, in some cases, the criminal conviction of perpetrators will be considered proof of some or all of that perpetrator's legal liability in civil actions brought by the perpetrator's victims and therefore does not have to be realleged and proven. Since the burden of proof is lower in civil actions than in criminal proceedings, the court can accept the criminal conviction as proof of liability in a corresponding civil action. This may accelerate litigation of the victim's claim considerably, as will be discussed below.

VICTIMIZATION AS A TORT: A PRIVATE ACTION

When a victim initiates a lawsuit, it is typically brought as a "tort" action. As Professor W. L. Prosser tells in his learned treatise The Law of Torts, the word tort is derived from the Latin "tortus" or "twisted." As Prosser states, the metaphor is apparent: a tort is conduct that is twisted, or crooked, not straight . . . broadly speaking, a tort is a civil wrong (Keeton et al. 1984).

Essentially, the legal definition of a tort is a private or civil wrong or injury that typically involves the violation of a duty one individual owes to another, often based on the relationship they have to each other. Torts can be divided into two distinct categories. The first is an intentional tort where someone intentionally injures another person. The second is a negligent tort in which one person fails to perform some duty to care for another person and this negligence causes or contributes to the injury of that other person. These will be discussed in greater detail below.

Proving a tort case: liability. At least two elements must be proven to support a tort claim. One is liability. The plaintiff/victim must first prove that the defendant is liable, that is, his or her actions harmed the victim and caused the injury in a legal sense. This is sometimes called the proximate cause of the injuries. The facts one uses to demonstrate liability differ depending upon whether the tort is intentional or negligent. The second aspect that must be proven is damages. Damages are a measurement of what harm has occurred, that is, the extent of the injuries suffered by the victim.

First party and third party litigation. The types of legal actions pursued by victims, and potential sources of financial recovery, also depend upon whether they are suing the perpetrator directly (first party) or are bringing their action against another party (third party) for contributing indirectly to the harm suffered by the plaintiff. A plaintiff seeks to hold a third party defendant accountable for their negligent, albeit indirect, contribution to the victimization.

In first party litigation, the victim is suing the defendant who is the actual perpetrator. Third party litigation, on the other hand, includes cases where the victim sues a landlord or hotel for failing to provide adequate security which created conditions that allowed a rape to occur. Another example is a lawsuit against a school for the negligent hiring and poor supervision of an employee who sexually abused children at the school. Other third party lawsuits are brought against government agencies, for example, corrections officials or mental health officials for the negligent release of dangerous individuals, or against other kinds of employers who negligently employ and retain persons who victimize other employees or customers.

It is important to note that there is a significant burden on the plaintiff/victim to demonstrate that the negligent third party was actually negligent. Frivolous deep pocket searches such as seeking out a defendant with greater financial means than the first party defendant are discouraged by the law and the courts.

Collectability: making judgments real. One significant aspect of first party versus third party litigation is the issue of collectability. Collectability is a general term that refers to the defendant's ability to pay the judgments rendered against him or her. In first party litigation, where the action is brought directly against perpetrators of the crime, victims are often limited to collecting their judgment directly from the assets of the offenders. This is because insurance policies that might be available to pay certain kinds of judgments often exclude intentionally committed wrongful acts from coverage.

Most often, the likelihood of recovering damages on behalf of a victims in first party cases is directly related, in large part, to the wealth of the perpetrator. Third party litigation, on the other hand, typically involves cases that are brought against entities or institutions that may have more than adequate resources to pay for victim damages and whose actions (or nonactions), due to the nonintentional nature of their negligence, may be covered by insurance. Thus, additional avenues for payment of judgments to victims may be available from insurance companies covering negligent actions.

Causes of Action

A number of different types of civil lawsuits can be brought by victims against perpetrators depending on the facts of the case. Many of these lawsuits have direct linkage to criminal charges, and others are distinct from the criminal law. Although civil torts are not crimes, they often are closely related and typically involve the same event. A brief overview of major types of tort actions potentially available to victims is listed below. Note that each area, likethe other topics discussed in this overview, requires a much more detailed understanding than is available in this brief treatment. It is always important for the victim advocate to refer victims to competent legal counsel in the jurisdiction where the matter will be litigated, and not to second-guess or otherwise judge the merits of a lawsuit.

WRONGFUL DEATH

In the case of a criminal homicide, a wrongful death suit may potentially be brought in civil court. A wrongful death suit is a civil action that is brought when one person has killed another person and there is no excuse or other justification for this killing. For example, the law allows us to defend ourselves against the genuine threat of being killed. Therefore, the defense of self-defense is often used to term a homicide as a justifiable homicide.

ASSAULT AND BATTERY

Assault and battery are two torts which, although historically separate and distinct actions, have been merged into one civil action in many jurisdictions. Traditionally, the civil action of assault is when a perpetrator has intentionally put a victim in fear of being battered. It is important to note that this fear must be real, based on the apparent ability of the perpetrator to commit the battery. The companion tort, called battery, is an intentional, offensive, nonconsensual touching of the victim by the perpetrator. This touching is usually in the form of a severe injury.

EMOTIONAL DISTRESS

Claims for emotional distress are often brought by victims against their perpetrators. It is important to note that the emotional distress claim is one that is distinct from the underlying claim of, for example, assault and battery. This is important because emotional distress claims often have longer statutes of limitations during which time a lawsuit may be brought. This means that if a victim had an underlying lawsuit based upon being battered, but that time frame has passed, he or she may still be able to bring an action for the emotional distress that was the result of that underlying battery. Emotional distress may be either intentional or negligent. Intentional infliction of emotional distress occurs when the perpetrator has intentionally caused psychological harm to the victim. Often, the actions of the perpetrator must be considered extreme or outrageous and sometimes are described as "outside the bounds of common decency in normal society." The negligent infliction of emotional distress occurs under similar facts but there was no actual intention to cause the emotional distress; rather it was caused out of the negligence of the perpetrator.

OTHER CAUSES OF ACTION

There are several other theories of personal injury that are sometimes available to victims of crime. These include theories of parental liability where parents may be held civilly responsible for the injuries caused by their children. Negligent entrustment is when one person allows another to use some dangerous instrument when he or she should have known that the other person might cause an injury, and injury does befall the victim. Finally, civil conspiracy (also known as aiding and abetting) is a tort that is recognized in some jurisdictions. This is asituation in which persons other than the individual who actually committed the crime so substantially contributed to the perpetrator's ability to commit the crime that they should also be held somehow responsible for assisting the actual perpetrator.

CIVIL ACTIONS INVOLVING CHILDREN AND WOMEN

More recently, due to the increased attention paid to particular forms of victimization, as well as new federal and state legislation, lawsuits particularly tailored for special victim populations have emerged. It is important to note that, as Carrington and Rapp point out, "victimization" itself is not a new tort, as such (Carrington and Rapp 1989). The civil cases being brought on behalf of victims and, in particular, women victims, are typically based on a number of well recognized civil causes of action. Crimes against children and, particularly, sexual abuse, are now regularly pursued within the civil justice system. This is increasingly true because of statutory extensions in the limitations on time that are allowed in these lawsuits.

Examples of how traditional tort concepts can be applied to special victim population cases are evident with child victims. When sexual abuse has occurred, a civil complaint may allege numerous personal injuries. These may include the underlying assaults and batteries, false imprisonments, wantonness or recklessness, and other torts. Also, as emotional and psychological damages are typically evident in child abuse cases, emotional distress claims are extremely appropriate and common.

Crucial aspects of a child's emotional distress claim involve a presumption, by the court, of the severity of the event and the fact that most courts will not give much credence to typical defenses such as consent or assumption of the risk. Moreover, due to the young age of the child and the long life span anticipated for a young person, economic damages can be very high.

In addition, issues surrounding the loss of enjoyment of life (such as the lack of the ability to trust, lack of the ability to form meaningful relationships, lack of the enjoyment of childhood, and other similar claims) can be added to more easily determined claims such as the loss of employability or the results of academic failure. It is not that the underlying legal action itself is different from other civil lawsuits, but new territories now being explored by civil courts in establishing damages, judgments, and awards for child victims are stretching the traditional views of courts to new boundaries.

Crimes against women are also increasingly handled through the civil courts. As the public recognition of domestic violence, sexual assault, and sexual harassment become better understood and recognized, victims are finding greater justice in civil courts. Also, courts have become more familiar with the psychological impact of crime, and look to psychiatric diagnoses such as posttraumatic stress disorder, and other recognized syndromes such as rape trauma syndrome or battered women syndrome, to articulate the injuries suffered by victims of these crimes.

THE VIOLENCE AGAINST WOMEN ACT'S IMPACT ON CIVIL REMEDIES

The 1994 Violence Against Women Act's (VAWA) provisions authorizing federal suits for civil damages resulting from gender-based injuries have ended numerous such suits over the past two years. For example: In Doe v. Doe (929 F. Supp. 608 (D. Conn. 1996)) this civil remedy was upheld by a U.S. District Court in a case brought by a wife against her abusive husband. Although there are still many areas under VAWA that need to be established, many more cases and decisions favorable to victims under VAWA can be expected in the years to come. (See also Goldscheid, Coukos, and Zorza 1996.) An excellent compilation and discussion of cases, pleadings, and related information in the area of VAWA actions can be found in Frazee, Noel, and Brenneke (1997).

U.S. v. Morrison, et al. (Sup. Ct., No. 99-5). A highly significant decision regarding civil remedies for crime victims was rendered by our nation's highest court on May 15, 2000, in the case of U.S. v. Morrison, et al. (Sup. Ct., No. 99-5). The 5-4 ruling dismissed the case of Christy Brzonkala, a former Virginia Polytechnic Institute student, who was the first person to sue in federal court under the 1994 VAWA Act. Ms. Brzonkala, in alleging that she was raped by two university student-athletes, brought a civil suit against the alleged perpetrators pursuant to 42 U.S.C. Section 13981, which provides a federal civil remedy for the victims of gender-motivated violence.

The Court majority ruled that Congress, in enacting the civil remedies provision of the VAWA Act, had overstepped its authority to regulate interstate commerce and enforce the equal protection guarantee of the U.S. Constitution. The opinion of the Court held that Section 13981 cannot be sustained as a civil remedy for crime victims under either the Commerce Clause of the U.S. Constitution (dealing with interstate commerce) or the Fourteenth Amendment to the U.S. Constitution (providing for equal protection under the law). In so doing, the justices rejected the petitioner's argument that states are not doing enough to protect rape victims and that gender-based violence restricts women's choices in jobs and travel.

In the dissenting opinion for the Court minority, Justice David Souter cited "the mountain of data assembled by Congress, here showing the effects of violence against women on interstate commerce. . . . Violence against women may be found to affect interstate commerce and to affect it substantially" (www.findlaw.com/casecode/supreme.html, 2000). He also cited the thirty-eight states whose attorneys general had testified in support of the VAWA legislation and who had affirmatively stated their strong belief that the problem of violence against women was a national one, requiring federal attention, federal funds, and federal leadership (Ibid.).

Statute of Limitations

It is very important to keep in mind that although the victim may have a valid case to bring against a perpetrator, it must be brought within strict time limits established by law. Although each state varies as to its statutes of limitations for various legal actions, all states employ these statutes. Once a statute of limitations has run, it is virtually impossible, unless there areexceptions recognized under the law, to bring a lawsuit that otherwise might have been brought within the statutory time limit.

Most statutes of limitations are expressed in absolute years. For example, it is typical for personal injury actions to have two or three year statutes of limitations.

Statutes of limitations typically begin to run from the point in time when the act occurs, but certain events can delay or extend a statute of limitations, which is called "tolling the statute."

The underlying purpose of statutes of limitations is to prevent stale cases from being brought to court and thereby denying a defendant, either criminal or civil, from being able to defend himself/herself due to the lack of exculpatory evidence or the fading memory of witnesses and similar reasons.

However, defendants are not allowed to deliberately conceal their actions and thereby avoid prosecution of a case due to the running of a statute of limitations. That is why most statutes of limitations schemes allow for the tolling of the statute during periods where the defendant, for example, has perpetrated a fraud against the plaintiff or committed some other acts to conceal the crime from the plaintiff.

Extending statutes of limitations for adult survivors of childhood abuse. One particular area where there has been much recent action extending statutes of limitations is child sexual abuse. Many states now extend statutes for bringing civil actions against abusers until many years after the child has reached the age of majority. For example, Connecticut has established one of the lengthier statutes which is seventeen years past the age of majority, or age thirty-five years. These actions are allowed regardless of the victim's reason for not bringing the action earlier.

Extensions and delayed discovery approaches. There are generally two types of cases where a victim may have delayed bringing a civil action.

• The victim has lost or repressed his or her memory of the abusive events. At a later point, these memories may be recovered in therapy or spontaneously.



• The victim always had his or her memory of the events, but did not begin the action for any number of other reasons.

Reasons for not bringing an action during a period when the memory of the abuse is recalled might include: continued threats or intimidation perpetrated by the offender; or the victim may not have understood the connection between the abusive acts and the difficulties he or she is currently experiencing. Regardless of the reasons, these victims always had access to all or most of their memories of the events. Therefore, the absolute extension of time allows for a date certain within which victims may bring their cases. Victims do not need to prove any particular issue, such as a lost and recovered memory, to begin a suit that is within the prescribed statute of limitations.

A few states require victims to bring an action within a certain number of years, usually two or three, after they have recovered their memory. This action is allowed within this time period regardless of what point in life these memories are recovered. In a delayed discovery jurisdiction, there is typically no absolute age limitation as the tolling of the statute relates to the period of memory loss or repression. Therefore, someone who is seventy years old and recovers a memory of past abuse presumably would be allowed the two- or three-year period within which to bring a suit if all other requirements were met.

Extending "statutes of limitations" in civil suits for adult survivors of child sexual abuse has become a great aide to victims pursuing these matters. Significantly, a 1977 Connecticut case indicates that the state's statute of limitations statute is not affected by the death of the alleged abuser. The Trial Court indicated that bringing such a civil action against the estate of the deceased does not violate Constitutional "equal protection" rights (Moen v. Baransky).

Defenses

Whenever a victim brings a legal action claiming one of the injuries described here, the defendant will be able to respond and often provides a defense or an excuse for critical actions. One defense, as discussed above, is that the statute of limitations has passed. This is called a "complete defense." It is often possible to stop victims from pursuing their cases any further if the statute of limitations has run.

Another defense is that of provocation or the victim somehow provoked the defendant into action. Defendants may claim that they were involved in self-defense or the defense of others by saying their actions were justified in that they were only reacting to a threat against themselves or someone else. Victims may also be accused of having consented to the act or having enough knowledge that they assumed the risks that were apparent by consenting to the act. This basically means that the victim is being accused of knowingly exposing themselves to the harm that ultimately injured them. Although one cannot consent to everything, e.g., murder, consent (if proven) can help the defendant defeat the victim's case.

Finally, victims may be accused of contributing to their own injuries. This defense in some jurisdictions is used to completely defeat the victim's case (contributory negligence) and in other jurisdictions it may be used to reduce the amount of money that the victim may be able to recover (comparative negligence).

Proving Damages

In addition to demonstrating the liability of one or more defendants, the victim must also prove his or her extent of harm or injury to support an award of damages. Damages may be sought for a variety of victim injuries. The most basic of these are physical injuries that require medical intervention. It is often easy for medical bills to be produced and to have these included in a judgment for damages.

In addition, when there is physical injury, often a physician can indicate a specific permanent partial disability, or narrow range of disability, so that a jury or court may estimate more accurately what effect this will have on the person's life, thereby allowing a particular damage award. Often issues such as the potential for future medical treatment and the costs of these treatments are figured into such damage awards.

In other victim cases, however, some less tangible damage theories may be applied. Similar to the costs of past and future medical treatment, the costs of past and future mental health therapy may be estimated relatively easily. However, it is often extremely difficult to state with any specificity what the percentage of partial disability for emotional or psychological damage should be. A competent and experienced expert must be engaged to testify on these matters.

Critical Role of Victim Services Providers

How does one determine issues such as the loss of childhood or adolescence? How are these issues quantified in any way that will make sense in the objective view of the court? This raises the very complex issue of how one can determine whether a loss of academic, professional, or personal potential has occurred. How can one prove that there was a potential when it was never realized? These are all issues that place the victim service provider, and particularly the allied mental health professionals, in a critical role within the civil justice system. Often, courts look to mental health service providers for treatment recommendations and evaluations of disability to provide guidance in determining a value that can be placed on the victim's injuries for the purpose of awarding damages.

Judgments

At the conclusion of a civil lawsuit, a verdict or decision is reached by the jury.

If that decision is a "verdict for the defendant," then the plaintiff/victim has lost his or her case and is not allowed to recover for injuries against the defendant.

If the result is a "verdict for the plaintiff," then the plaintiff/victim has won the lawsuit.

Juries are then requested to move to the next decision-the awarding of a particular sum to compensate the victim for his or her injuries. This is typically referred to as a "judgment."

COLLECTION OF DAMAGES AWARDED

It is important to note that in a typical victim case, reaching the conclusion of trial and having a judgment rendered for the victim/plaintiff is often only the beginning of the struggle in recovering damages. First, verdicts and judgments may be appealed. A defendant who has lost can seek to have a judgment overturned, lowered, or set aside because the jury or the court failed to follow some legal procedure, or the result of the lawsuit is inconsistent with theprevailing law in a particular state. Therefore, the decision of this trial-level court may be brought up before an appellate court to render a decision as to the validity of the underlying decision, and even if the verdict itself is not attacked, the amount of the judgment may be appealed. Often, defendants seek to lower the amounts of money awarded by juries who they feel were overly zealous in awarding damages to the victim.

Assuming the judgment withstands any appeals or other challenges, then a collection of that judgment must commence. Depending on the defendant, this process involves several potential options.

Searching for assets. If a defendant is sufficiently monied so as to be able to pay a judgment and chooses to do so, the collection of that judgment may be similarly swift. Typically, this does not happen in victim cases. Potential assets include the following:

• Real property (i.e., a home).



• Other property (such as jewelry, motor vehicles, artwork, or other valuable holdings).



• Other assets such as financial holdings, interests in real estate, corporations, or partnerships.



• Other income earned by or owed to the perpetrator.

Additionally, most states allow some method by which income earned or expected by the perpetrator can be garnished. Many times a victim will wait until the perpetrator has accumulated some assets to attempt to execute the judgment. Defendants may win lotteries, receive inheritances, or come into other windfalls that can open them to judgment execution. However, attorneys representing victims know that these are the exception, and not the rule, and typically the collections process can be a somewhat complex endeavor. This is particularly true with defendants who may attempt to fraudulently transfer their property or other interests to individuals who help them shield their assets from collection actions brought by victims. Nevertheless, a diligent collections process often results in obtaining money to fulfill some, most, or all of the judgment rendered by the court.

Insurance issues in brief. It is very useful for attorneys to look to the possibility of insurance coverage in victims' cases. Note, however, that the likelihood of recovery in first party lawsuits is significantly tempered by underlying public policy regarding insurance. Essentially, insurance policies do not cover intentional wrongdoing. This is based on long-standing public policy. It is fundamental to our society's well-being that wrongdoing not be encouraged by having the judgments of intentional wrongdoers paid by insurance.

Counterbalancing these insurance policy exclusions are various exceptions to exclusion that are found in insurance contracts or are being carved out by creative attorneys. The types of exceptions to the intentional acts exclusions that are being developed by courts include those where the perpetrator was unable to or otherwise did not form the intent to commit the act.

For example, if someone of diminished mental capacity were to commit an act, and it was determined that he or she was unable to truly form the intent to commit these wrongs, then coverage might be allowed.

Negligence is insurable. Third party suits brought against negligent defendants, who are not the actual perpetrators, allow for a much greater possibility for coverage by insurance policies. In the case of negligence, no intentional acts are committed by these third party defendants. As stated above, the hotel chain did not actually commit the assault; however, its knowledge of the high potential of assaults due to past criminal activities, and its failure to increase security to prevent these acts while assuring guests that protection was available to them, results in the determination of negligence.

Three types of insurance are most commonly involved in crime victim cases:

• Automobile insurance.



• Commercial insurance.



• Homeowner's insurance policies.

Automobile insurance policies cover acts that "arise out of the use, operation, or maintenance of the motor vehicle." An obvious example would be a case where a drunk driver crashes into the victim, causing death or serious injury. These acts are considered within the scope of coverage of an automobile insurance policy.

Some difficult determinations involving automobile policies arise when the wrongful act is one that is not normally considered to arise out of a typical use, operation, or maintenance of a car. For example, if a drive-by shooting were to occur, should the automobile insurance policy be implicated? Courts differ in their interpretation of this, most finding that the motor vehicle is not actually an instrument of the drive-by shooting, and that the automobile policy will not be implicated.

Commercial insurance policies, similar to homeowner's (or renter's) insurance polices, provide liability coverage for events that occur on particular premises. These insurance polices tend to be broad and cover a number of different types of injuries or accidents. Moreover, coverage may not be limited to events that occur only at these locations. For instance, commercial policies may provide coverage for acts that are committed by employees outside the place of business, e.g., at a conference or seminar sponsored and/or conducted by the employer. Similarly, acts that are committed by the homeowner under certain circumstances may be covered, even when the homeowner is not actually on his or her property.

Retribution Against Victims

A disturbing trend in victim's civil litigation cases involves legal retributions brought against the victim by the perpetrator. These may be brought in the form of separate lawsuits or counterclaims within the victim's own lawsuit.

Typical counterclaims against the victim include the following:

• Defamation, liable, and slander.



• Invasion of the defendant's privacy.



• Conspiracy or fraud against the defendant.



• Extortion claims against the defendant.



• Claim that the victim's action has caused emotional distress to the defendant.

One additional avenue always available to defendants is to claim that the lawsuit was merely brought for vexatious purposes. A vexatious lawsuit is one that the defendant alleges was otherwise groundless and brought only to needlessly harm the defendant in an unwarranted or improper way. This is an area that deserves considerable attention from victims and their advocates. Also, there is a growing trend toward lawsuits against mental health service providers. These lawsuits most typically involve allegations that the provider implanted false memories in the mind of a victim.

Other Cautions for Victims

Although victim litigation often provides excellent opportunities for victims to find remedies against perpetrators, it is not an easy road. Civil litigation is a complex and difficult process. Victims can often be victimized once again in the civil process, despite the fact that they possess more control. Victim cases can also be very expensive to pursue.

Victims must be aware of the fact that they are ultimately responsible for the costs of litigation under most legal ethics rules and, if they lose their cases, they can be held responsible for the defendant's costs as well. As noted above, the discovery period is often the most difficult for victims. Victims must, once again, reveal very personal information about themselves and allow themselves to be probed and cross-examined by the perpetrator's attorney. This can be a very disturbing experience for victims who have, in many cases, recently or simultaneously endured the indignities of the criminal justice system. Although victims should not be overly cautious of litigation, victims and advocates must have a realistic view of the civil justice system prior to commencing such actions.

Recommendations for Victims and Advocates

In May 1998, the Office for Victims of Crime within the U.S. Department of Justice released a significant study, New Directions from the Field: Victims' Rights and Services for the 21stCentury, developed by leaders in the victims' field. It contains recommendations for the improvement of crime victims' rights and services. Key recommendations regarding civil remedies from this report are as follows:

• Crime victims should be fully informed of their legal rights to pursue civil litigation.



• State and local networks of civil attorneys who have experience representing crime victims should be expanded. Education and training on civil litigation should be offered to attorneys to increase the pool of qualified lawyers in these networks and to maintain the level of expertise among member attorneys. Nonattorney experts and professionals should participate in these trainings and networks to educate attorneys so that they represent victim issues more effectively.



• Increased efforts should be made to identify consultants with the expertise to testify on issues relevant to victimization in civil and criminal cases.



• Civil attorneys should work with victim service providers, law enforcement officials, and prosecutors in their communities to develop an easy-to-understand pamphlet about civil remedies for crime victims.



• Civil attorneys should provide training to victim service providers on civil remedies for crime victims.



• Statutes of limitations for civil actions involving child abuse cases should be extended, as has been done in a number of states. States should also examine statutes of limitations for civil actions relating to other criminal acts to determine whether they should be extended to provide a meaningful opportunity for crime victims to obtain needed relief.

Resources for Victims and Advocates on Civil Litigation

The area of civil litigation on behalf of victims of crime continues to evolve at a rapid rate. A recent development is the establishment of the National Crime Victim Bar Association (NCVBA) by the National Center for Victims of Crime http://www.victimbar.org. In addition to the case law database mentioned below, a publication called Victim Advocate is published quarterly. Recent issues have presented articles on emerging areas in civil litigation on behalf of victims, including "Workplace Violence and Employer Liability" and "Stalking and Domestic Violence in the Workplace" (Winter 2000), "Civil Remedies for Victims of Elder Abuse" (Fall 1999), and "Sexual Harassment in the Schools" and other important issues regarding child victims of crime (Summer 1999). Victim advocates and service providers may wish to use these publications to educate themselves about emerging trends in this area of potential financial assistance to victims, or may find it useful to alert the attorneys with whom they work to the existence of the NCVBA and related litigation support materials.

The online database available through the NCVBA provides access to over 11,000 case summaries. Due to the tremendous level of activity in this area, the Civil Remedies chapter's strong recommendation that victims and advocates seeking civil legal assistance or information must locate competent, local counsel familiar with the courts within which any particular caseis to be pursued must be reinforced. It should be reiterated that many state and local bar associations and trial lawyers associations have established committees dealing directly and indirectly with victims' issues. These include victims committees; committees focusing on the legal needs of children, women, and other special populations; and subsections of larger divisions, such as a state bar litigation section with a subsection that focuses on crime victim litigation. These are often important sources of experienced and jurisdiction-knowledgeable practitioners.

Civil Remedies Self-Examination

1. Identify and describe three major differences between civil litigation and criminal prosecution.

2. Name and define three legal causes of action used by victims.

3. What are civil statutes of limitations? Discuss statute of limitations innovations applied to adult survivors of childhood abuse cases.

4. Discuss the pros and cons of victim litigation.

Civil Remedies Glossary

Aiding and Abetting. Similar to civil conspiracy, when someone, not the actual perpetrator, so significantly contributes to the criminal operation as to be considered liable for their actions.

Abscond. To go in a secretive manner out of the jurisdiction of the courts, or to lie concealed, in order to avoid their process.

Answer. Formal written responses to the defendants/perpetrators file in response to plaintiff's complaints. These pleadings may deny some or all of the allegations; they may raise defenses such as self-defense or assumption of risk, or they may allege that even if all of the plaintiff's allegations are true, there is no liability. These pleadings are usually accompanied by legal memoranda and briefs. The names of the pleadings vary from jurisdiction. "Demurrers," "motions for summary judgment," motions to dismiss," and "answers" are all descriptions of a responsive pleading.

Assault. A cause of action for intentionally putting the victim in fear of a battery, coupled with the apparent ability to commit the battery.

Assumption of Risk. A legal doctrine that may relieve perpetrators of liability for injuries to victims if the victim voluntarily entered into a situation knowing that there was a risk of foreseeable injury.

Automobile Insurance. Insurance policies that cover injuries "arising out of the use, operation, or maintenance" of the vehicle.

Battery. The intentional, offensive, unpermitted touching of the victim by the perpetrator.

Burden of Proof. The threshold of evidence that one party must present in order to prevail in his or her case. In criminal cases, the burden of proof is very high: "beyond a reasonable doubt," or generally 99 percent of the evidence. In civil cases, however, the burden of proof on the victim/plaintiff is "a mere preponderance," or more than 50 percent of the evidence.

Causes of Action. The legal basis for a civil lawsuit.

Civil Actions. Lawsuits filed by victims to recover from injuries sustained and damages incurred as a result of the perpetrator's crime.

Civil Conspiracy. See Aiding and Abetting.

Collateral Estoppel. A legal doctrine which provides that, in some cases, the criminal conviction of perpetrators will be considered proof of those perpetrator's legal liability in civil actions brought by the perpetrator's victims.

Collectability. A general term meaning the extent to which defendants/perpetrators have the financial means to pay judgments from assets on hand, assets reasonably to be expected in the future, or financial assistance from such sources as insurance coverage.

Comparative Negligence. The more prevalent approach to reducing amounts paid to plaintiffs/victims allowing partially negligent plaintiffs/victims to recover damages from defendants/perpetrators, however, reducing the amounts of the award by the applicable percentage of the plaintiff's/victim's own negligence (see also: Contributory Negligence).

Compensation. Monetary reparations made to crime victims by a state or a governmental entity to recover "out-of-pocket" expenses incurred as a result of a crime.

Compensatory Damages. Damages paid to compensate victims for losses caused by the torts of the perpetrator. Such losses include out-of-pocket expenses; loss of income; expenses such as medical bills, therapy, and funeral costs; loss of present and future earning capacity; conscious pain and suffering; financial support; and "consortium," the loss of the affection and society of loved ones.

Complaint. The formal written pleading filed in a civil court alleging that the defendant(s) injured the plaintiff(s), and that the defendant(s) should be liable for damages caused.

Contributory Negligence. A legal doctrine, now modified in most jurisdictions, that any negligence on the part of the plaintiff/victim will bar civil lawsuits against defendant/perpetrator.

Criminal Action. Cases in which the state prosecutes perpetrators of criminal acts, committed in violation of the state's laws.

Damages. Amounts of money awarded to winning parties in civil suits expressed in a judgment.

Defendants. Parties against whom civil actions are brought.

Defenses. Legal doctrines that relieve defendant/perpetrator of liability for having committed a tort.

Delayed Discovery Rule. A legal doctrine that suspends the running of statutes of limitations during periods of time in which the victims did not discover, or by the exercise of reasonable diligence, could not have discovered, the injuries that would lead to their causes of action against the defendant/perpetrator.

Depositions. Pretrial proceedings in which attorneys for parties in a civil case have the opportunity to examine, under oath, the opposing parties and potential witnesses in the case. Depositions are sworn and reduced to writing. The transcripts may be admissible in evidence at trials if the witnesses are no longer available, or for purposes of impeachment.

First Party Action. Lawsuits brought by victims directly against their perpetrators.

General Liability Insurance. Insurance policies covering whatever losses are enumerated in the policy.

Homeowner's Insurance. Broad-based insurance policy that contracts to protect the insured from enumerated causes of accidental injuries to others. The accidents usually are not confined to acts that happen on the insured's "home" premises but also includes accidents that happen elsewhere. Renters of premises can obtain Renter's Insurance.

Insured. The individual who has contracted to receive insurance coverage from the Insurer whose actions are otherwise covered by an insurance policy.

Insurer. The business entity which has contracted to provide insurance coverage to the insured.

Judgments. The formal recitations of the outcomes of civil cases. They are almost always reduced to writing, and recorded as a part of the file.

Negligence. A legal doctrine providing that one may be liable to another if (1) he or she owes a legal duty to the other; (2) he or she materially breaches that duty; (3) the breach is the proximate cause of the other's injury; and (4) the other person suffers damages.

Negligent Entrustment. A tort in which one or more persons give, lend, or allow someone to use, or should have anticipated that the person would use, a dangerous instrumentality to injure another.

Parental Liability. A legal doctrine that holds parents civilly liable for the torts and crimes of their children.

Perpetrators. Persons who have criminally injured victims.

Plaintiff. Party bringing civil actions. In the case of victim civil remedies, the victim is the plaintiff.

Professional Liability Insurance. Insurance coverage issued to professional persons: doctors, dentists, lawyers, architects, etc., to cover any losses caused by malpractice in the course of their professional services.

Provocation. A legal doctrine that may excuse defendant/perpetrator from the consequences of his/her crime/tort if the plaintiff/victim instigated a confrontation, or otherwise caused or provoked the defendant's actions.

Proximate Cause. The "cause in fact" of injury to victims; a "cause" without which the victim's injuries would not have occurred.

Punitive Damages. Damages awarded to victims against perpetrators, over and above compensatory damages, in order to punish or make an example of perpetrators.

Renters Insurance. See Homeowner's Insurance.

Rescue Doctrine. A legal doctrine that allows one to recover for injuries suffered in coming to the rescue or assistance of others in peril. It is used as a counter to the defense of Assumption of Risk.

Restitution. Court action that requires perpetrators to make financial payments to their victims, usually as a condition of probation or leniency in sentencing.

Self Defense. The legal doctrine which relieves defendants/perpetrators of liability for torts if they acted in the reasonable belief that they had to use force to defend themselves, or others (loved ones, etc.), from death or great bodily harm.

Settlements. Agreements among the parties to lawsuits to end the suits without trial; usually the plaintiff agrees to drop the lawsuit for a fixed sum of monetary damages paid by the defendant.

Statute of Limitations. Periods of time, set by law, after which civil actions cannot be brought.

Third Party Actions. Lawsuits brought against persons whose negligence or gross negligence has facilitated the commission of a tort by a defendant.

Tolling of Statutes of Limitations. The running of statutes of limitations is suspended.

Torts. Civil or private wrongs (as opposed to criminal offenses) committed by perpetrators against victims.

Uninsured or Underinsured Motorists. State law usually makes it compulsory that drivers have enough insurance to cover damages if they, or others defined in the policies, are injured by motorists who have no insurance, or not enough insurance, to cover injuries that they have caused.

Victims. Persons who have been injured by the criminal acts of perpetrators.

Wrongful Death. The civil action for the killing of one human by another, without justification or excuse.

NVAA LEARNING EXERCISE

Chapter 5.1: Civil Remedies

Brief Description of Exercise/Activity: This is a group discussion led by NVAA faculty that encourages NVAA students to work together to analyze hypothetical crime victim cases and determine: (1) eligibility or possibility for civil remedies, restitution or compensation; (2) appropriate documentation of losses; and (3) the obstacles to recovery and potential solutions.

Faculty members should provide the attached case scenario and worksheet to NVAA students, and provide them with 10 minutes to complete the worksheet table (on either an individual or group basis). Then, facilitate a brief group discussion that emphasizes the unique aspects of civil remedies for victims of crime.

Goals of Activity:

1. To help students understand the differences between remedies available to victims in the criminal and civil justice systems.

2. To provide students with an opportunity to understand and appreciate civil remedies as a viable option for victims.