Civil Legal Remedies for Crime Victims.


************************************************************************

                  From the Director

Crime victims suffer painful and often permanent injuries at the 
hands of their assailants. Despite many effective advocacy efforts 
during this past decade, our society still does not provide 
adequate relief to victims in the wake of crime. Civil litigation 
should be viewed as an additional tool to provide such redress. 
Working together, victim service providers and civil attorneys can 
provide victims of crime with meaningful options for financial 
recovery, options too quickly dismissed and significantly
underrated by professionals in past years.

Therefore, it is with pride that the Office for Victims of Crime 
(OVC) reissues this revised edition of the Legal Remedies for Crime 
Victims Bulletin. This publication provides a broad overview of 
civil remedies options available to crime victims. Its subject 
matter was expertly developed and first presented nationwide by 
the National Victim Center, recipient of an OVC grant award in 
1990-92 to produce the manual, Legal Remedies for Crime Victims 
Against Perpetrators: Basic Principles, and to conduct a series 
of regional conferences. This publication draws extensively from 
both the Manual and the curriculum of the Regional Conference Series.

Much of the subject matter shared through these two OVC training 
projects--and indeed, the reason OVC felt it important to fund 
opportunities for victim service providers to become informed 
about civil legal remedies-- was due to the persuasive advocacy 
of Frank Carrington. Mr. Carrington, an attorney and author of 
the Legal Remedies Manual, was dubbed "father of the victims 
movement" during a Presidential ceremony commemorating National 
Crime Victims Rights Week 1991. Mr. Carrington recruited faculty
for the Conference Series and assisted the National Victim Center 
in the development of the conference curriculum. The subject 
matter reflected in this Bulletin was the substance of his 
life's commitment: promoting public awareness of civil legal 
remedies available to crime victims.

Frank Carrington died tragically in a fire at his home in 
Virginia Beach, Virginia, on January 2, 1992. Thus, it is 
with a mixed sense of sadness, commemoration and celebration 
that we continue his work through the release of this publication.

We look forward to sharing our appreciation of these civil legal 
options with you.

Carolyn A. Hightower
Acting Director

************************************************************************


            Civil Legal Remedies for Crime Victims

Victims of crime are now resorting to civil litigation, in addition 
to victim compensation and restitution, as a financial means for 
recovering from the ill effects of crime. Increasingly, victims are 
finding their way into civil courtrooms to recover from physical, 
psychological and financial injuries by recovering for lost wages, 
hospital costs, counseling expenses, property damages and all of 
the many other various costs incurred as a result of victimization.

To date, the victims movement has not emphasized financial remedies 
for crime victims. Thus, they have not been familiar complainants 
(plaintiffs) in civil courtrooms. Too many victims and civil 
attorneys have overlooked potential avenues for recovering damages 
from perpetrators and have mistakenly believed that perpetrators 
have no assets from which to collect judgments. Crime victims, 
consequently, have not been fully informed of their legal rights 
against perpetrators and civil recoveries have essentially 
remained inaccessible.

The two-fold purpose of this Bulletin is to: 1) introduce 
victims and victim service providers (providers) to factual 
circumstances which may give rise to civil suits (theories of 
liability), and 2) make civil attorneys available to victims by 
dispelling the myth that perpetrators have no assets from which 
to collect civil judgments (the myth of uncollectability).

The provider's role is integral to achieving both purposes. It 
is always the victim's decision whether or not to undertake a 
civil action against a perpetrator; it is also solely the victim's 
decision as to the selection of a civil attorney. The provider, 
however, can serve as a vital information bridge between the victim 
and the civil attorney. He or she is in a unique position to elicit 
facts from the victim's memory shortly after the crime occurs, to 
evaluate those facts and to highlight for the victim the possible 
value of civil litigation. A factual circumstance with the potential 
for a civil suit for damages should motivate the provider to
suggest to the victim that he or she consider seeking legal 
counsel. If the victim expresses an interest in pursuing this 
course of action, the provider should be prepared to inform the 
victim about bar association referral networks, relevant factors to 
consider when selecting an attorney and other referral-related 
information. Of course, providers should also be cognizant of 
ethical concerns or policies of their employers in this regard.

During a case consultation with the civil attorney, the provider 
can assist the victim in presenting facts that may be relevant to 
liability and collectability--two case elements essential to a 
successful civil recovery. An insightful presentation of the facts 
may very well encourage the attorney to represent the victim. Such 
a presentation may also provide the attorney with significant 
assistance in obtaining a civil judgment for the victim.

This publication encourages victim consideration of civil remedies. 
It is not intended to provide legal advice nor is it intended to 
encourage non-attorneys to provide such advice to crime victims. 
The legal theories discussed do not address important legal 
distinctions among jurisdictions, distinctions which can best be 
evaluated and explained by competent local attorneys. This Bulletin 
is intended only to familiarize providers with the types of 
questions which can be asked to elicit relevant, factual information 
from victims so that the attorney whom the victim has selected can 
better represent the victim-client. Attorneys with crime victim
representation experience are nearly always more than willing to 
take the time necessary to discuss cases with potential clients, 
and are, of course, licensed to render legal advice.


Effects of civil litigation

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 prosecutors' 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 essentially one against 
the state. Thus, the system is designed to protect and enforce the 
rights of society as a whole. Traditionally, it has functioned to 
convict, punish and rehabilitate criminals, not to assist
victims. 2 The victim's role, 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 
the prosecutor's 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.

Civil litigation is important because it provides the victim with 
an opportunity to vindicate his or her individual rights and, in so 
doing, it provides empowerment. The victim decides whether or not to 
bring a civil suit. The victim decides whether to accept a 
settlement offer. It is up to the victim to carry the burden of 
proving liability by a preponderance of the evidence (i.e., proving 
by evidence which is more convincing than that presented by the other 
side). In a civil court, the victim controls essential decisions 
affecting the case against the perpetrator (the first party) and 
negligent third parties--parties who do not commit the crime but whose 
negligence may have facilitated the occurrence of the crime.

Successful civil suits also have an important deterrent effect. 
First party suits let perpetrators know that crime does not pay, and 
that they must account to those whom they victimize. Suits involving 
negligent third parties promote enhanced safety practices and 
encourage the exercise of greater caution, thereby reducing the 
occurrence of crime.

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 victim
consideration.

************************************************************************

            Criminal and civil litigation scenario

A woman was held captive in her home, raped, stabbed and left by two
perpetrators to die. She recovered physically from her wounds but 
due to the psychological trauma she endured, all memory of the 
incident was blocked out. The only evidence available to potentially 
place the alleged perpetrators at the scene of the crime were 
inconclusive DNA semen samples and the testimony of five year-old 
neighbor who claimed that he saw one of the alleged perpetrators 
leave the premises.

The prosecutor filed and prosecuted charges of kidnapping, rape and
attempted murder against the alleged perpetrators. At trial, 
Perpetrator 1, the one who had not been seen by the five year-old 
witness, asserted his Fifth Amendment Right against self-
incrimination and declined to take the stand. The jury subsequently 
found that the state had failed to prove beyond a reasonable doubt 
that he had committed the crimes charged. The other perpetrator, 
Perpetrator 2, was found not guilty by reason of insanity. Thus, 
they were both acquitted of all criminal charges.

Subsequently, and upon the suggestion of a provider, the victim 
brought civil suits against both perpetrators. Her complaints 
against both perpetrators alleged assault, battery, false 
imprisonment, trespass and intentional infliction of emotional 
distress. During discovery, the victim's attorney took the 
perpetrators' depositions or sworn statements. At that time, 
Perpetrator 1 testified that he had previously been charged and 
convicted of three similar rapes. This evidence, evidence that was 
not elicited or admitted during the criminal trial, was subsequently 
used by the victim's attorney to establish proof by a preponderance 
of the evidence that Perpetrator 1 had committed the torts alleged 
in the complaint. Based on the child-witness' testimony, the jury 
also found that Perpetrator 2 had committed the torts alleged. 
Since civil courts do not generally relieve defendants of civil 
liability "by reason of insanity," both perpetrators were held 
accountable and were required to pay damages to the plaintiff-
victim for torts alleged.

The civil protections available to defendants are less stringent 
than criminal procedural protections because the civil defendant 
does not risk loss of liberty through incarceration. Thus, in civil 
courtrooms, the defendant cannot take the Fifth Amendment; he 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, as was illustrated with 
respect to Perpetrator 2, in the civil court process, a perpetrator 
cannot escape liability by reason of insanity.

The plaintiff-victim has far greater control over civil court 
proceedings because he or she is a formal party to the case; the 
burden of proof is only a preponderance of evidence versus proof 
beyond a reasonable doubt, and because of less stringent rules of 
evidence and courtroom procedures.

************************************************************************


Relationship between civil and criminal litigation

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 
wholly independent from the criminal prosecution, there are 
strategic considerations which affect both the criminal and the civil 
actions.4 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 raise a statute of limitations defense.


Generally, criminal charges translate into somewhat parallel civil 
causes of action. Thus, if a prosecutor obtains a conviction, 
principles of 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.


Tort liability

Most criminal acts are also torts, or civil wrongs which have resulted 
in personal injury and loss of property. Thus, providers should be 
generally familiar with the various types of civil actions (civil 
causes of action) so that they can inform victims about the possible 
availability of civil remedies and monetary relief. Causes of action 
in tort--i.e., 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, 
or the result of negligence. Both types of torts have several 
common legal elements:

o  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).

o  Second, the defendant must have committed the tortious act alleged 
in the civil complaint.

o  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).


There are many types of intentional torts:

o  An assault occurs when a perpetrator puts another in fear of being
injured and has the capability of inflicting injury.

o  A battery occurs when a perpetrator has intentional, offensive 
physical contact with a victim--an offensive, unpermitted "touching."

o  A wrongful death action can be filed if it is alleged that a
perpetrator killed another without justification or excuse.

o  False imprisonment occurs if a perpetrator confines a victim 
against his or her will, such as in a rape or hostage situation.

o  Intentional, reckless infliction of emotional distress occurs 
when a perpetrator, by extreme and outrageous conduct, intentionally 
or recklessly causes someone emotional distress.

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).

Torts based on negligence, rather than intent, may be brought against
first party perpetrators 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 
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.

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:

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

o  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 physical acts constituting the crime 
(co-conspirators).

o  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.

Defendants may attempt to negate against tort claims by asserting 
legally viable defenses. Fore example, a defendant may be relieved 
of liability if he or she shows that the action causing plaintiff 
injury was committed in self defense or in defense of others. 
Liability for negligence torts may be negated or narrowed if a 
defendant can show that the plaintiff was responsible, in part, for 
his own injury (contributory or comparative negligence). As a defense, 
the perpetrator might also try to prove that the plaintiff provoked 
the defendant or consented to the action causing injury i.e., assumed 
the risk of injury. All tort claims must be filed within a certain 
time period after the injury is sustained. Failure to file within the 
applicable time frame may also provide the perpetrator with a viable 
defense.


Victim service provider's role

The provider can play an important role by informing the victim about 
the possibility of a monetary recovery through the civil courts, 
providing the victim with realistic expectations regarding the 
likelihood of recovery, and in assisting the victim to locate an 
attorney responsive to a victim's unique needs. The degree to which 
the provider handles this role depends in large part on his or her 
ability to identify factual relationships.

To identify possible torts committed by a perpetrator, the facts
surrounding the crime must be fully examined. The victim may want the
provider to assist the civil attorney in this process. Based on a
familiarity with theories of civil liability and collectability, the
provider can be of great assistance in eliciting relevant facts from 
the victim that may prepare a victim's attorney in evaluating the case 
and in representing the victim.

Facts about personal relationships, in particular, may affect the 
strength of the victim's civil case and may shed light on the 
probability of judgment collection. Specifically, the following types 
of data may serve as a start in gathering information relating to 
liability and collectability.

If, for example, a victim of domestic violence seeks assistance, an
experienced provider usually reaches out by exploring the facts
surrounding the victimization. Within the specific context of 
potential civil remedies, the provider might tap into a vein of 
factual relationship questions:

o  Did the victim's husband, other family member or boyfriend 
physically abuse her? If the answer is yes, the provider could 
consider the activity as a possible assault and battery and ask 
additional questions pertaining to the degree of her injuries.

o  Did the batterer ever encourage another person to physically abuse 
her? Is there a co-conspirator from whom the victim might collect a 
judgment?

o  How severe were her injuries? The more severe the injuries, the 
greater the likelihood that substantial damages might be awarded.

o  Did the batterer threaten the victim and her children? If yes, the
provider could elicit facts surrounding the threats. From a reasonable
person's perspective, might the threats be considered outrageous? Did 
he make the threats while waving a gun at her and the children? If yes, 
the batterer might be found liable for intentional or reckless 
infliction of emotional distress.

o  Facts should also be elicited to identify possible defenses which 
the batterer might raise. Is it possible that the batterer may claim 
that the victim provoked the physical abuse? How might such a defense 
be countered? How long ago did the crime occur? Is there a possible 
statute of limitations problem? If yes, the provider should suggest 
to the victim that she consider consulting an attorney and caution 
her against developing high expectations for recovery.

In addition to asking questions in the vein of civil liability, the 
victim should be questioned on the possibility of collecting a jury 
award from the perpetrator. Victims often find it far easier to 
establish perpetrator liability, particularly if there is a criminal 
conviction, than to collect on a civil judgment from perpetrators. 
While successful proof of civil liability can represent a moral 
victory, victims also feel that true justice demands that judgments 
for damages be fully satisfied. Key factual information relating to 
the likelihood of collecting on a judgment can help civil attorneys 
provide victims with realistic expectations of recovery.

There are a variety of ways to find out about a perpetrator's assets 
and preserve them pending the outcome of the civil case. Many victims 
know their perpetrators and can identify full names, dates of birth, 
social security numbers and other information that can facilitate 
in the identification of assets. Presentence investigations, conducted 
during the course of criminal proceedings, may also yield clues as to 
the perpetrator's assets. Precautionary attachment orders may 
subsequently be requested to temporarily freeze the assets. Such 
orders serve to prevent the defendant from transferring, hiding or 
wasting assets or otherwise avoiding payment of civil judgments.

Finally, seemingly indigent perpetrators may have hidden assets, a 
wealthy family or they may earn money in the future. While civil 
judgments may not be immediately collectable, they may be preserved 
until assets are obtained by the perpetrators at a later date. Other 
possible assets from which to satisfy judgments are listed in the 
next table.

The provider need not conduct a feasibility study on how likely it 
will be for a given victim to collect on a judgment if one is 
obtained. Attorneys are experts in this area and have the necessary 
tools at hand to obtain the information. Facts elicited by a provider, 
however, can be used to make the victim aware of the possibility of 
monetary recovery. Such facts can also serve to highlight, for the 
civil attorney, a financial value in representing the victim's 
interests.

Most attorneys accept cases involving personal injuries on a 
contingency fee basis. The victim assigns a percentage of the 
collected damage award, often one-third, to the civil attorney as 
compensation for services rendered. In some states, the percentage 
is set by statute. Under the contingency fee arrangement, the 
attorney is not paid for his or her services until or unless liability 
is proven and the judgment is collected. Thus, it is critical for 
victims to make civil attorneys aware of facts showing perpetrator 
liability and the likelihood of judgment satisfaction.

If a provider elicits relevant facts pertaining to liability and
collectability, accompanies a victim to the legal consultation and 
assists the victim in presenting the facts, it is likely that the 
attorney will favorably assess meritorious case facts. In effect, the 
provider will already have assisted the victim in determining whether 
it is in his or her best interest to pursue civil remedial relief. The 
provider can facilitate communication by the victim who may be too 
personally distraught to recount facts surrounding the crime. His or 
her presence may also help to prevent revictimization experiences.

While civil attorneys may be sympathetic to the plight of victims, 
their interests, out of economic necessity, are focused on the 
probability of proving liability and collecting on a judgment. 
Attorneys are reluctant to expend their time and needlessly raise 
a victim's hopes if there is little or no likelihood that the victim 
will benefit from the process.


*******************************************************************
            Sample case intake information

About the victim:
   Name, address and telephone number
   Date of birth, social security number
   Employer: name, address, telephone and work start date
   Marital Status: if married, name of spouse, spouse's history of
   employment
   Dependents, names and ages
   If victim is deceased, date and time of death, cause of death, 
      names of decedent's immediate family, autopsy report (if 
      available), death certificate, decedent's will, name of 
      administrator or executor of estate, funeral home name and 
      charges

About the criminal event:
   Date and time of criminal occurrence
   Location of events, addresses and description of premises
   Identification of reason why victim was at the location
   Why the perpetrator was at the location; how did the perpetrator 
      gain access to the victim?
   What happened to the victim?
   Identification of witnesses to any stage of the occurrence
   Identification of known physical evidence
   Police-related information: identification of police department 
      where the complaint was filed, identification of detective or 
      officer assigned to the case, complaint or report number, 
      identification of statements taken as part of investigation
   Prosecutor-related information: identification of prosecutor, 
   current stage of criminal case, and description of case 
   investigation conducted

About the perpetrator:
   If the perpetrator is known to the victim: nature of relationship 
      to the victim, perpetrator's name and aliases, address, date 
      of birth and social security number, employment information and 
      any information known about perpetrator's assets and insurance 
      coverage
   If the perpetrator is not known to the victim: physical description 
      of the perpetrator, identifying features
   If the perpetrator is not known to the victim but a third party 
      might bear some liability for the occurrence of the crime, 
      details surrounding the crime and where it was committed become 
      increasingly important eg. information about where the rape 
      occurred, description of the hotel security system, a hotel 
      receipt of prior notice of security system deficiencies, or 
      occurrences of prior similar crimes.

About damages sustained by the victim:
   Medical information: degree of physical, emotional and 
      psychological injuries sustained and extent and cost of 
      anticipated treatment
   Identification of hospital, physician services
   Identification of property damage
   Lost amount of victim's or victim spouse's time from work
   Has the victim filed for disability?
   Identification of loss of support amounts
   Sources of funds to cover damages or losses such as insurance 
      (policy number), crime victim compensation, medicate and 
      restitution

*******************************************************************


Collecting judgments

Even if a perpetrator does not appear to have any assets from which 
to collect a judgment, he might be insured. Increasingly, victims and 
their civil attorneys are obtaining judgment satisfaction from insured
perpetrators' insurance carriers.

Insurance is a contract between an insurance carrier (the insurer) 
and the insured. The insurance company promises to protect the insured 
from incurring financial liability for occurrences of the events 
covered in the policy. Generally, in order for a victim to collect 
from an insurer, four conditions must be met:

1) The perpetrator must be insured;

2) The policy must provide coverage for the act committed by the
   perpetrator that caused the victim harm;

3) The insured perpetrator must be found liable to the victim or
   plaintiff; and

4) No exclusions can apply for the particular liabilities alleged 
   unless there are applicable exceptions to the exclusions.

Insurance policies are designed to protect people from the financial
consequences of accidental injuries that they unintentionally cause
others. They are not designed to protect people from their own 
willful, criminal behavior. Thus, almost all policies contain standard 
exclusions for injuries that are expected or intended by the person 
insured. These exclusions cause victims and their attorneys to greatly 
underrate the possibility of collection on insured perpetrators' 
policies. Although the policy exclusions, including intended acts of 
the insured and expected injuries caused by acts of the insured, are 
standardized, state courts are now applying new interpretations to 
the boiler plate language-- interpretations often based on a desire to 
see victims compensated.

Attorneys for insurance companies urge civil courts to dismiss the
insurers from victim versus perpetrator cases by raising policy 
exclusions from coverage. Civil attorneys for victims, on the other 
hand, challenge the insurers by raising exceptions to the exclusions. 
Victim attorneys strive to show that an insured perpetrator was unable 
to form the intent to harm the victim (mental deficiency), or that the 
victim's injuries were unexpected or unforeseen (mistake of fact or 
law), or that the perpetrator acted in self defense--the legal 
theory being that self defense is a lawful use of force which the 
insured never meant to bargain away when purchasing insurance. If any 
one of these exceptions is successfully proven, the victim can often 
turn to the insured perpetrator's carrier for civil judgment 
satisfaction.

Diverse court decisions indicate that it is becoming increasingly 
more difficult to delineate a line between insurer's coverage and 
non-coverage. This ambiguity can often work in favor of victims 
seeking to collect on civil judgments from insurers. Consequently, 
victims, providers and civil attorneys should not discount the 
possibility that the perpetrator might be insured and that the 
victimization might be covered by the insured perpetrator's policy.

Just as victims and their attorneys sometimes underrate the 
viability of exclusion exceptions, they also misinterpret the extent 
of policy coverage by thinking that a policy title is descriptive of 
the extent of coverage. In fact, most policies are much broader than 
their titles suggest. The chart below describes the extent of 
coverage commonly provided by specific types of policies.

********************************************************************

            Possible sources to satisfy civil judgments

Perpetrator's sources of income:

   Wages

   Benefits (pension payments and annuities)

   Unearned income (dividends, interest, gifts)

   Trust fund income

   Tax refunds

   Government entitlements


Perpetrator's property and holdings:

   Personal property (cars, jewelry, etc.)

   Real property (home, land, etc.)

   Bank accounts

   All debts owed to the perpetrator 

   Financial holdings (stocks, bonds, etc.)

   Partnership interests

   Future interests in real and personal property through wills, 
      trusts, etc.

******************************************************************


Rules and protection for special victims

There is a body of civil law reflecting special rules and protection 
for women, children, victims of campus crime, bias crimes and others. 
These "special" groups of victims require specific mention because of 
unique, important legal rules that have evolved around each type of 
victim group. A comparison of the identified types of victims shows 
that they share several characteristics in common. They are 
victimized by crimes that are highly sensitive and emotionally 
charged. Perpetrators of crime against special victims often have jobs 
and assets, presumably reachable by judgment. They also often target 
their victims because of a perceived victim vulnerability eg., age, 
sex, race or physical isolation from society at large. And, in recent 
years, growing numbers of "special" victims have been obtaining civil 
legal remedies with increasing frequency. A discussion of each 
"special" group follows.

Abused children. Child abuse is often a crime that remains undetected 
for long periods of time and results in extensive injuries. Young 
victims face potentially life-long disabilities as a result of 
physical, emotional and sexual violence. Effective treatment is 
generally extended and costly. In first party litigation, the courts 
have been receptive to actions brought against perpetrators for 
assault and battery, and intentional, reckless and negligent 
infliction of emotional distress based on child abuse factual 
circumstances. Findings of liability allow victims to offset the
costs of physical and psychological recovery through judgment 
recoveries against perpetrators.

Unfortunately, with respect to judgment recovery, victims of child
molestation have generally not been able to overcome the "intended 
injury" exclusion commonly contained in their insured perpetrators' 
insurance policies. Courts have traditionally considered the crime 
of child abuse to be so deplorable that they have inferred the 
perpetrators' intent to injure plaintiff victims. This legal 
conclusion has precluded child molestation victims from collecting 
on their civil judgments from their insured perpetrators' carriers--
carriers who commonly exclude intentional acts of those they insure.

While victims of child abuse are limited in their ability to pursue 
their perpetrators' insurers for judgment satisfaction, they can often 
consider seeking civil remedial relief against negligent third parties 
who knew or should have known that the abuse was taking place and did 
nothing to identify it or stop it. Common negligent third parties 
include schools, child care facilities, youth groups, camps, 
churches--those who employ authority figures who victimize children.

Finally, with regard to victims who were sexually abused as children,
civil attorneys should never presume that the victim lost the 
opportunity to file a civil action just because the victimization 
occurred long ago. Special statutes and court rules have evolved to 
toll (suspend) statutes of limitations for filing such actions. The 
so-called delayed discovery rule, adopted in many jurisdictions, 
allows victims to file suit many years after the victimization if: 
1) the victim repressed afl recollection of the abuse until a later 
event triggered the memory, or 2) the victim recollected the abuse 
but did not know that current psychological problems were caused by 
the abuse until a later date. All such victims who are disposed toward 
filing a civil action should be encouraged to consult with an attorney 
regarding statute of limitations implications and the delayed
discovery rule.

Women as victims. Increasing numbers of women are suffering severe
victimizations as a result of rape and domestic violence. These 
victims should be informed that the rules of evidence in civil cases 
are far more flexible and favorable to victims than are those in 
criminal cases. For example, the Rape Trauma Syndrome, Battered 
Women's Syndrome and Post Traumatic Stress Disorder have been 
successfully used in civil cases to establish damages and liability. 
Providers who usually have a thorough understanding of such injuries 
can offer civil attorneys and the courts a unique insight as to 
whether victims are experiencing the syndromes.

Victims of perpetrators who work in a professional capacity. Victims 
of "professional" perpetrators i.e., physicians, dentists and 
psychologists, may have a good chance of collecting both from their 
perpetrators and their perpetrators' malpractice insurance carriers. 
The victims need only show that the victimization took place during 
the course of or as part of the perpetrators' professional employment. 
In this regard, the location of the crime scene might be important.

Victims of campus crime. Victims of campus crime and date or 
acquaintance rape are commonly stonewalled; they are discouraged 
from reporting criminal activity through the suggestion that they 
were responsible for the crime or assumed the risk of its occurrence 
i.e., they were drinking when the rape occurred or they consented to 
go to the rapist's room.

Until recently, few statistics were compiled and little case law had
evolved on campus victimization matters. This may have occurred 
because schools covered up crimes by not informing students about the 
dangers of campus violence and by dissuading or preventing student 
victims from tarnishing the schools' reputations by reporting the 
crimes.

There are, however, a few legal routes available to student victims. 
These victims may be able to bring successful failure of security 
actions against their schools. Courts can hold third parties liable 
for failing to protect foreseeable victims from criminal activity, 
and even public institutions have been successfully sued for 
negligence and failure to protect in certain cases. Most colleges 
and universities also carry general liability insurance which may 
be relied upon to satisfy judgments.

Victims of bias crime. Like campus crime suits, the filing of civil 
suits based on bias crime is a relatively new phenomenon. Federal 
Civil Rights Acts, however, have been used for years to provide 
civil remedies for hate crime victims.

Most cases are brought as civil rights violations based on race, 
religion, sexual preference, gender, and age for injuries sustained 
as a result of assault and battery, wrongful death, intentional 
infliction of emotional distress or false imprisonment.

*******************************************************************

            Types of insurance

Homeowners/renters      Covers homeowners and renters. Incidents 
                        need not occur on policy holders' premises.

Automobile              Covers injuries "arising out of the use" of
                        automobiles. Coverage extends to some 
                        instances where an automobile is "in use" but is 
                        not being driven. The insurer may also be liable 
                        for damages involving the automobile even if the 
                        tort was not committed by the owner of the 
                        automobile and the policy holder.

Professional liability  Covers liability arising from "malpractice" in a
                        professional capacity. Malpractice may include
                        the abuse of a professional relationship.

General liability       Similar to homeowner's insurance but usually
                        carried by businesses.

Life                    Covers loss of life. Murderers are not allowed 
                        to collect under policies covering their 
                        victims because of the resulting unjust 
                        enrichment that would benefit criminals.

********************************************************************


Making effective referrals

Providers have an important role to play in informing victims about 
the possible availability of civil legal remedies but that role is 
a limited one. Providers are not licensed to practice law and would 
be exposed to liability if they attempted to offer legal advice. 
Thus, it is incumbent on them to offer victims guidance in selecting 
a civil attorney. In the next column is a list of suggested criteria 
for victims to consider when selecting an attorney.

When discussing the possible availability of civil legal remedies 
with a crime victim, it is important that he or she have realistic 
expectations about the civil court process. Caution should be 
exercised so as not to create unrealistic optimism for the victim 
concerning the possible outcome of a civil suit. The victim 
should also not assume the worst regarding potential civil relief. 
Attorneys can best explain the likelihood of proving civil 
liability and recovering on a judgment with regard to individual 
case scenarios.

If a victim decides to investigate civil legal remedies by consulting 
an attorney, he or she would benefit from information about the 
practices of local attorneys and attorney selection criteria. To 
develop a referral protocol, applicable state laws or rules 
should be followed and local bar associations should be consulted 
regarding standard referral practices in the area. Many providers 
make it a habit to offer victims the names ()f at least three 
competent attorneys with experience in victim litigation.

As previously mentioned, it may be helpful to both the civil 
attorney and the victim if the provider accompanies the victim to the 
initial legal consultation. If this is not possible or desirable, the 
provider should later elicit feedback from the victim in order to 
assess victim satisfaction with the attorney. Such feedback ensures 
the maintenance of an effective referral list. It is also important 
for providers to elicit feedback from the attorneys to whom the 
victims are referred. This type of follow-up will be helpful in 
determining whether the right types of cases are being referred to 
the civil attorneys.

Finally, for information on a nationwide scale, victims and providers
should be aware of the National Victim Center's Coalition of Victims
Attorneys and Consultants (COVAC). COVAC is a professional membership
network created to serve crime victims. Its former director, the late
Frank Carrington, was a champion for victim legal rights for decades 
and in April 1991, during National Crime Victims Rights Week, he was 
honored by President Bush for his significant work in the area of 
civil legal remedies for crime victims.

The design of effective referral protocols can be facilitated by 
providers working to build network relationships among victims, other 
providers, and civil attorneys. Local bar associations are often 
receptive to Teaming about victims' needs and to providing general 
legal advice. These are possible sources for network building.

*********************************************************************

            Attorney selection considerations

o  Look for attorneys who have experience handling personal injury,
wrongful death and/or professional malpractice claims on behalf of
plaintiffs. Attorneys who have experience working with crime victims 
are preferable.

o  A productive attorney-client relationship is based upon the 
ability of both sides to communicate fully and effectively with each 
other. Victims should feel comfortable fully disclosing all 
information to their attorneys. Attorneys should be able to 
effectively explain all aspects of legal proceedings to victims and 
they should be responsive to victims' needs and requests.

o  Victims should fully understand all details of any retainer 
agreement prior to signing it. If victims have questions, they should 
feel comfortable in discussing them with the attorney. If questions 
persist, they may call local bar associations about laws and 
regulations pertaining to contingency fee arrangements, 
retainers, etc.

o  Victims should be clear about what they expect their attorneys to 
do, and attorneys should be clear about what services they are 
rendering and the likelihood of obtaining desired results. For example, 
a civil attorney may be retained on a contingency fee basis to sue a 
perpetrator, but not retained to handle a State crime victim 
compensation claim or to accompany the client victim to criminal 
court. These services may be available but may entail an additional 
charge. Reasonable expectations on both sides can avoid later 
disappointment and frustration,

o  Victims should feel free to consult with several lawyers before
selecting one. Lawyers are professionals and good consumer practice, 
with respect to selecting a professional, is to obtain a second 
opinion.

o  Victims should cooperate, as fully as possible, with their 
attorneys; such cooperation is necessary for successful representation 
of their interests. Victims have the right to expect their attorneys 
to be understanding, respectful, and responsive to their needs. 
Attorneys have the right to expect their clients to be honest and 
willing to participate in the building of their own cases.

********************************************************************


Advantages and disadvantages of civil litigation

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:

1) 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.

2) 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 c with the resulting psychological stress.

3) 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.

4) 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.

5) 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.

6) Victims can lose their civil suits, or receive minimal 
compensation.

If providers and civil attorneys fail to inform victims of such
disadvantages, the victim may become revictimized, as a result. For 
too long, victims, civil attorneys and providers have underrated the 
possible value of civil relief. The purpose of this Bulletin, 
therefore, is to highlight the advantages of civil litigation so that 
this remedial option is no longer overlooked or dismissed. 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.


The victim needs to 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.

*******************************************************************

            Attorney networking sources

Local:

   o  City or County Bar Association
   o  Lawyer referral services
   o  Law schools
   o  Young lawyers associations
   o  Social service agencies
   o  Victim service organizations
      - Domestic violence shelters
      - Sexual assault centers
      - Anti-drunk driving groups
      - Parents of Murdered Children
      - Other private non-profit groups serving victims

State:

   o  Statewide Bar Association (Personal Injury Section)
   o  Statewide Trial Lawyers Association (Personal Injury Section)

National:

   o  COVAC--The National Coalition of Victims' Attorneys and 
      Consultants (through the National Victim Center)
   o  American Trial Lawyers Association (Personal Injury Section)
   o  American Bar Association (Victims Committee)
   o  Trial Lawyers for Public Justice
   o  Other national organizations victims' specializing in women's,
      children's, and other crime victims' legal rights

********************************************************************