united-states criminal-law civil-law tort assault
What is actually the difference between a *crime* and a *civil wrong*?
<p>I have two questions I'd like some help on, the answers to which potentially depend on each other.
The first is a working definition for a <em>civil wrong</em> (as opposed to a crime). The second is whether all civil wrongs constitute crimes and hence can be regarded as illegal acts.</p>
<p>A <em>crime</em> is generally defined as <em>an act or omission that is prohibited by law</em>. Thus, from what I understand, states will have various statutes that are passed by their respective legislatures defining what acts/omissions constitute crimes in their jurisdiction as well as what their potential punishments will be. For example, California may have a law written in a statute somewhere saying that an individual may not assault someone and that the penalty is no more than 2 years imprisonment etc.</p>
<p>Now suppose someone in California bumps into someone else walking on the pavement (accidently) causing the other to fall and injure themselves. In this case, because the action of bumping into someone had no malice aforethought (it was accidental), we could say that the individual has not in fact committed a crime but instead has possibly committed a <em>civil wrong</em> (a <em>tort</em>). If this is the case, are there statutes in each respective state defining exactly what acts and omissions constitute civil wrongs? If there are statutes defining these civil wrongs, surely this would mean that all actions/omissions defined by statute to be civil wrongs are also in fact <em>prohibited by law</em> ? (since there exists a statute stating that the act/omission carries with it a potential penalty etc). If this is true, all civil wrongs must necessarily be <em>crimes</em> as well as civil wrongs since they are prohibited by law because a statute declaring a potential penalty for an act/omission is functionally a prohibition by law.</p>
<p>Am I correct in my thinking here? Is it the case that all civil wrongs are necessarily crimes because they constitute actions/omissions that are prohibited by law (since there exists statutes defining them and their potential penalties)?</p>

<p>The detailed answer depends on the jurisdiction that you are asking about (e.g. Saudi Arabia, France, US or specifically California): my answer is about the US. You should note that the term &quot;crime&quot; originally comes from Ancient Greek <a href="http://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.04.0057:entry=kri/ma" rel="nofollow noreferrer">κρίμα</a>, which means &quot;decision; judgment&quot;: the word form is pretty stable, compared to the concepts that it is associated with. When the legal system changes, the referent of &quot;crime&quot; changes. Some facts about how the words are used are because of historically earlier concepts. At an earlier stage of English law, there was no distinction between crimes and civil wrongs, there were simply wrongs (&quot;tort&quot;, in French).</p>
<p>In contemporary American practice, &quot;crime&quot; is a sub-type of offense against the government, the other being an &quot;infraction&quot; (such as a parking ticket). &quot;Civil wrong&quot; encompasses breaches of contract, breaches of trust, and &quot;torts&quot; such as trespassing and assault, and have in common that they are wrongs against an individual. If you commit a crime, it is you against the government, and one set of principles is adhered to in deciding <em>guilt</em>. If you commit a civil wrong, it is you against the individual (though it may be that the government acts as the mouthpiece when e.g. the &quot;citizens of California&quot; have been each wronged), and different principles are adhered to in deciding <em>liability</em>.</p>
<p>The distinction can be murky given overlap in certain cases, for example assault is both a crime, as dictated by statutory law and punishable by prison time, and also a tort (sub-type of civil wrong) as recognized at common law (traditionally recognized since the 13th century in England), and passed on to modern America. You can sue a person for the tort of assault, but the government prosecutes you for committing the statutory offense of assault. In the case of a lawsuit over assault, you seek compensation for the harm done do you, you do not seek punishment for an offense against society. That is the function of criminal law, to define the acts which may be punished.</p>
<p>Most states in the US have done away with &quot;common law crimes&quot;, but as far as I know the remnants of common law crime in the US are limited to &quot;definitions&quot; – punishments are set out in statutory law. An example of common law definitional inheritance is &quot;assault&quot; under <a href="https://apps.leg.wa.gov/rcw/default.aspx?cite=9a.36&amp;full=true" rel="nofollow noreferrer">Washington law</a>, where assault includes poisoning, transmitting HIV, and assaulting in various ways (relying on the common law definition of &quot;assault&quot;). This common law definition is then transmitted to the juror via a <a href="https://govt.westlaw.com/wcrji/Document/Iefa7d8b5e10d11daade1ae871d9b2cbe?contextData=%28sc.Default%29&amp;transitionType=Default" rel="nofollow noreferrer">set of instructions</a>, which summarize the case law that defines &quot;assault&quot;.</p>
<p>As you can see, there is a bright line between crimes and civil wrongs, so it is plainly not the case that all civil wrongs are crimes. A number of civil wrongs are statutorily defined (e.g. copyright infringement), and there is in the US a tendency to statutorily encode the essentials of civil wrongs as well as crimes.</p>
<p>You are probably right that crime is &quot;generally&quot; defined as an act or omission prohibited by law, where &quot;generally&quot; means &quot;by most people&quot;, but that is because most people don't have a clear understanding of &quot;law&quot;, &quot;statute&quot; and &quot;common law&quot;. Here in Law SE, we tend to use &quot;legal&quot; in a very broad sense, meaning &quot;would probably be allowed and not incur any sanction by the courts&quot;. Copyright infringement is not (necessarily) a crime, but it is prohibited by law, thus &quot;prohibited by law&quot; is not a good definition of crime.</p>
<p>Because of the distinction between &quot;crime&quot; and &quot;infraction&quot;, both of which are cases of the individual vs. the government, &quot;crime&quot; has to be defined in terms of a specific aspect of the statutory law, the punishment. You can be imprisoned for committing a crime, but not for an infraction, such as a parking ticket. In Washington, <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=7.84.020" rel="nofollow noreferrer">&quot;infraction&quot; is defined</a> with reference to Title 76, 77, 79, or 79A RCW or RCW 7.84.030(2)(b) that &quot;is declared not to be a criminal offense and is subject to the provisions of this chapter&quot;, such as <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=77.15.160" rel="nofollow noreferrer">fishing with barbed hooks</a>. Even though the government is the prosecutor in such a case, <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=7.84&amp;full=true" rel="nofollow noreferrer">the offense is defined</a> is said to be &quot;civil in nature&quot;.</p>
<p>In other words, the distinction is anything but clear.</p>

<h3>Crimes</h3>
<h5>In General</h5>
<p>A crime is (1) a violation of the law, (2) defined by statute (except in the handful of states that retain common law crimes which even then typically statutorily acknowledge the existence of common law crimes and provide some boundaries on the sentences for them), (3) which can be enforced by the government in the name of the &quot;People&quot; of that state (even if a private citizen can prosecute the crime as a few states allow for some offenses), (4) for which a punishment such as incarceration, a fine, or some other punishment, which is not compensatory in nature, may be imposed.</p>
<p><em>Proof Of Individualized Harm To A Particular Person Is Not Required</em></p>
<p>Liability for a crime does not, in general, require the state to establish a particular amount of harm to any person (although some particular criminal offenses do).</p>
<p>For example, the federal mail fraud statute allows for a conviction even if no one actually suffered damages as a result of the fraudulent conduct carried out by mail, while a tort action for the civil wrong of fraud, requires a showing that someone was actually harmed economically by the fraud.</p>
<p><em>Mens Rea (i.e. Criminal Intent) In Criminal Cases</em></p>
<p>Usually, criminal liability may only be imposed when the conduct by the defendant is intentional or at least reckless. But, there are a minority of crimes for which criminal punishments can be imposed for criminally negligent conduct or on a strict liability basis.</p>
<p><em>Restitution In Criminal Cases</em></p>
<p>Sometimes in addition to the punishments described above, a compensatory restitution award or court costs award against a defendant can be imposed, but this does not prevent something that is otherwise a crime from counting as a crime.</p>
<h5>For purposes of triggering constitutional rights of criminal defendants</h5>
<p>For purposes of the constitutional rights associated with criminal cases, simpler tests are used to determine if a violation of the law is a crime. Both of these bright line tests were established by U.S. Supreme Court case law precedents.</p>
<p>For purposes of the constitutional right to counsel as a criminal defendant, a crime is an offense for which you can be incarcerated (with a more complicated twist on this rule involving a multi-factor balancing test applying in the case of contempt of court proceedings brought in connection with a civil case by a party to the action).</p>
<p>For purposes of the constitutional right to a jury trial in a criminal case, a violation of the law is a crime if it is punishable by six months or more of incarceration.</p>
<p>In cases classified as criminal for either of these purposes, default judgments of criminal liability entered <em>in absentia</em> (i.e. without the presence of the defendant) are not generally allowed unless the criminal defendant was originally present and booked in the case, and then absconded during the trial.</p>
<h3>Civil Wrongs</h3>
<h5>In General</h5>
<p>The phrase &quot;civil wrong&quot; is usually used as synonymous with the legal term of art which calls these kinds of lawsuits &quot;torts&quot;, a term that excludes, for example, breach of contract and property rights cases.</p>
<p>But, sometimes the phrase is used more broadly to refer to all grounds for bringing a lawsuit arising from a violation of the law by someone else by someone other than the government in a regulatory capacity, that includes breach of contract lawsuits, and lawsuits to enforce statutorily created rights for private individuals to bring lawsuits for damages they experience.</p>
<p>A civil wrong is (1) a violation of the law (often defined only in common law precedents) (2) which can be enforced in a civil lawsuit, (3) by someone who suffered or will imminently suffer, actual, particularized injury from the violation of the law, (4) for which a remedy of compensatory money damages, nominal damages, declaratory judgment, injunctive relief, specific performance, or the like that remedies the harm that is done or imminently about to be done to the person bringing the lawsuit.</p>
<p>Default judgments <em>in absentia</em> are allowed and are routine in all but a handful of kinds of civil cases. Default judgments are also generally not allowed against people in military service, people acting as agents of the state or federal government, minors, or people who are known to be incompetent and are not represented by a guardian or similar person.</p>
<h5>Punitive damages and penalties in civil wrong lawsuits</h5>
<p>Sometimes, state law or common law can authorize an additional recovery of a non-compensatory award of punitive damages or statutory damages or liquidated damages, in addition to a compensatory damage award (or in lieu of one), but this is only possible if there was an underlying injury to the individual bringing the lawsuit which it remedies. The availability of these additional remedies, however, do not prevent a civil wrong from being a civil wrong instead of a crime.</p>
<p>In an action arising from a civil wrong, punitive damages, even if they are allowed, are constitutionally limited (to oversimplify) to three times the amount of compensatory damages experienced, if the amount of compensatory damages (including damages for emotional distress or other non-economic harms) is large, and to a small, reasonable amount that may be greater relative to the compensatory damages award if the amount of compensatory damages is small (e.g. a $5,000 punitive damages award might be upheld even in a case where the compensatory damages suffered were only $100).</p>
<p>Punitive damages are generally not allowed at all for breaches of contract (with some narrow exceptions mostly involving bad faith beaches of insurance contracts by insurance companies), and contractually created fines are only valid if they are &quot;liquidated damages&quot; (i.e. they are a reasonable attempt to quantify in advance the actual compensatory harm caused by a breach of contract in circumstances where proving an exact dollar amount of economic harm is likely to be difficult or impossible as a practical matter, relative to the magnitude of the harm).</p>
<h3>Edge Cases</h3>
<p>There are edge cases where the classification of an offense as a crime or a civil wrong is not obvious.</p>
<h5>Civil Enforcement Actions By Government Officials</h5>
<p><em>Quasi-Criminal Civil Enforcement Actions</em></p>
<p>Another edge case involves circumstances in which the only remedy available for a violation of the law, which is enforced by a government agency, is a fine, and the procedures applicable to criminal cases do not apply, and instead the less demanding procedures applicable to civil cases apply. Typically these offenses involve conduct such as traffic infractions, parking violations, tax penalties not involving unpaid taxes owed (e.g. for failing to file an information tax return like a 1099), and administrative regulation violations (e.g. violations of safety rules or environmental laws).</p>
<p>These kinds of cases are quasi-criminal in nature, but are treated as civil for constitutional law and procedural purposes because incarceration isn't available as a remedy.</p>
<p><em>Quasi-Class Action Enforcement Actions</em></p>
<p>But, sometimes, civil enforcement actions by government officials involve systemic violation of statutory rights impacting consumers or employees or investors, typically, in circumstances in which it would be impracticable for the individuals harmed by the violations of the law to bring individual lawsuits - such government civil enforcement cases are an alternative to class action lawsuits. In these cases, compensatory damage awards to the victims of the violations of the law may be the primary objective of the lawsuit, rather than imposing civil fines or penalties.</p>
<p>The right of the government to enforce these laws for the benefit of the people harmed by the violation isn't simply derivative of the rights of the people harmed the way it is in a true class action lawsuit, however. It is an independent right of the government to bring a lawsuit that, for example, isn't subject to arbitration even if the people harmed signed arbitration agreements, and isn't subject to the defense that the people injured waived their legal rights in an express written waiver of rights.</p>
<p>Also, often, government enforcement actions of this type also have more rights remedies available to them (like pre-litigation subpoena power, the power to revoke licenses, or the power to obtain a broad injunction that doesn't just apply to the particular victims of the conduct who are bringing the lawsuit), which are not available in private civil actions by the people injured and are not available in class action lawsuits.</p>
<h5>Private Attorney General Actions</h5>
<p>Most often these edge cases arise when private individuals acting as &quot;private attorney generals&quot; are allowed to bring lawsuits on behalf of the state for money damages, where the damages awarded are not compensatory, and the person bringing the lawsuit is entitled to some or all of the penalty or compensatory restitution award secured, as a bounty or as compensation for bringing the action on behalf of the public, such as a <em>qui tam</em> action alleging that someone has defrauded the government, or a junk fax law lawsuit, or under some consumer protection laws (often in the form of a class action lawsuit).</p>
<p>From a doctrinal perspective, private attorney general actions are normally thought about as civil enforcement actions in which the private party plaintiff is acting as an agent or delegate of the government that would otherwise have the right to bring the lawsuit in question.</p>
<p>But the proper classification and characterization of these lawsuits is very much an open question of law that is being actively litigated, for example, in the case of the Texas anti-abortion bounty statute which is in force there and is the subject of numerous lawsuits regarding its constitutional validity.</p>
<h5>Crimes Without Punishments</h5>
<p>There are a handful of rare cases (for example, until recently in Colorado, the crime of adultery) where conduct is declared to be criminal, but there is no punishment which the law authorizes a court to impose if the crime is committed and the crime is therefore not actually enforced in criminal prosecutions.</p>
<p>This isn't entirely meaningless, however, as the fact that conduct is a crime may still have collateral consequences in civil lawsuits, for example, by making a decision to terminate someone's employment for committing a crime with no available punishment something that constitutes good cause for firing someone so that they are not eligible for unemployment insurance benefits.</p>
<h3>Crimes v. Civil Wrongs</h3>
<blockquote>
<p>Is it the case that all civil wrongs are necessarily crimes because
they constitute actions/omissions that are prohibited by law (since
there exists statutes defining them and their potential penalties)?</p>
</blockquote>
<h5>Not all crimes are civil wrongs</h5>
<p>No. Not all crimes may be vindicated in private civil actions. For example, the following are crimes, but not civil wrongs:</p>
<ul>
<li>Mail fraud not resulting in actual harm (discussed above).</li>
<li>Speeding and most other traffic offenses not resulting in an accident.</li>
<li>Official misconduct by a judge or prosecutor in the course of their litigation related duties (they have absolute immunity from civil liability).</li>
<li>Curfew violations.</li>
<li>Illegal drug dealing.</li>
</ul>
<p>Similarly, not all non-criminal civil violations of regulations enforced by the government and punishable by fines, such as immigration law violations, can be vindicated in private civil causes of action.</p>
<p>With some quite limited exceptions, a violation of a criminal statute cannot be directly enforced through a private cause of action (as opposed to a criminal prosecution in the name of the state by a private individual available in a few states mentioned above).</p>
<p>Sometimes, there is a separate common law tort that can provide a basis for a lawsuit for the same conduct, without reference to the criminal law.</p>
<p>Sometimes, a violation of a crime establishes some (but often not all) of the elements that must be proven to prevail in a tort lawsuit (e.g. establishing a duty of care to follow traffic laws in a car accident case, but not breach of that duty, or proof of damages caused by the accident).</p>
<p>Sometimes the fact that someone's conduct was criminal also provides a defense to a lawsuit (e.g. one can not enforce in court a contract that was criminally illegal such as a prostitution contract).</p>
<p>In Colorado, where I live, the most notable exception to this general rule, is that there is an expressly created private cause of action to enforce the statutorily created civil wrong of &quot;civil theft&quot; when someone commits theft or one of several other property crimes which meet the statutory definition of the crimes in question (for which additional remedies that are not available in a parallel civil wrong lawsuit for &quot;conversion&quot; are available). But, none of the other criminal code violations in Colorado give rise to a private cause of action to directly enforce violation of those specific statutorily defined crimes in a lawsuit.</p>
<h5>Not all civil wrongs are crimes</h5>
<p>Likewise, not ever civil wrong is a crime.</p>
<p>For example, many acts of carelessness causing physical injury or damage to tangible property, may form the basis of a civil lawsuit for a civil wrong in what is called a &quot;negligence&quot; action, but are not criminal offenses.</p>
<p>Similarly, in the vast majority of cases, a breach of a contract or failure to honor a promise is not a crime.</p>
<h3>Post-Script: Not All Civil Lawsuits Involve Civil Wrongs</h3>
<p>Not all cases in the courts involve either crimes or civil wrongs. Some civil lawsuits are brought to adjudicate people's rights in matters in which no one is alleged to have done anything that violates the law. Examples of such cases include:</p>
<ul>
<li><p>Cases to have a guardian appointed for an orphaned minor.</p>
</li>
<li><p>Cases to determine who owns real property or what the correct meaning of a contract is when either of these things is unclear.</p>
</li>
<li><p>Cases to establish paternity when there is a good faith uncertainty about who is the father of a child.</p>
</li>
<li><p>Adoption cases.</p>
</li>
<li><p>No fault divorce cases.</p>
</li>
<li><p>Initial custody determinations for children who are divorced or unmarried and seek court assistance in handling this matter.</p>
</li>
<li><p>Cases brought for the purpose of establishing a new municipality or a new special district government.</p>
</li>
<li><p>Cases brought to reform the terms of a HOA's (home owner's association's) governing documents when a quorum cannot be secured to make a change required by law or other urgent circumstances.</p>
</li>
<li><p>Name change petitions.</p>
</li>
</ul>
