Sexual Assault: What is the Difference Between Criminal and Civil Proceedings

There is a lot of confusion in the public about the difference between criminal and civil legal proceedings. Now, in the wake of the sexual assault allegations against Harvey Weinstein (and Rob Porter and Bill Cosby and Al Franken and so many other prominent men), many of these questions have arisen again.

In many cases when a person is a victim of a crime, they may also have the option of bringing a civil suit. Crimes like assault and battery are known on the civil side as “intentional torts”—meaning, unlike in the typical auto accident or malpractice case where the defendant merely acted negligently, the perpetrator of the intentional tort meant their actions.

Recall O.J. Simpson. He was acquitted in the criminal murder trial, yet held civilly liable to pay a settlement to the families of his victims. This is partially due to the burden of proof. Anyone who has watched Law & Order knows that a criminal prosecutor must prove their case “beyond a reasonable a doubt.” The civil standard is much lower; the plaintiff’s attorney must only prove their case by “a preponderance of the evidence”—meaning what they are presenting is “more likely than not” what happened.

A criminal conviction can put the defendant in jail or force them to pay other penalties to the state. A civil verdict can only force them to pay money. It makes sense that the criminal standard is higher.

However, one of the issues with pursing a civil case directly against the perpetrator of the crime is that there might not be anything to recover. Most insurance policies do not cover intentional bad acts and many people do not have any assets with which to pay a settlement. Even the O.J. Simpson victims had a terrible time getting paid on their claims after winning their case.

However, one benefit of pursuing a civil suit is that, unlike a criminal trial which can only punish the actual perpetrator of the crime, a civil court can potentially hold other parties responsible. If the crime occurred at a business or other place that had a duty to provide security (most businesses do) or supervise the perpetrator (such as an employee of a school or church who harms a child in their care), they might share responsibility for the act. And they probably do have insurance or other means to pay for the harm that was done.

As we saw from O.J. Simpson, the victims do not have to choose one path or the other. The state is responsible for the criminal proceedings and the outcome of the criminal testimony or trial can affect the civil case. If a perpetrator is convicted in criminal court for the same act they are accused of in the civil case they cannot deny that they did it in the civil case. It’s already been proven by a higher legal standard that they did. In legal terms, this is called estoppel.

If the civil case proceeds, first, however, it may be difficult later to bring a criminal case. In a civil case, a perpetrator can bargain for confidentiality. They will often pay more to make sure that whatever happened is never found out publically. That is why we see so many sexual assault and harassment cases not come to light until much later. There is often a confidentiality portion to any civil settlement they entered into- just ask Rose McGowan.

Right now we are seeing our country grapple with the interplay of civil courts, criminal courts, and the courts of public opinion. We are having to weigh the values of seeing an abuser punished, making them (sometimes literally) pay for the harm that they have caused, and warning the public about dangerous people or conditions.

If you’ve been a victim and have questions about whether a civil case is right for you, we can help. Call us anytime; we’re available every day, and nights and weekends.