By Kurt J. Martin, Attorney at Law
If you do something bad to somebody else, is that a crime for which you can be arrested? Is it a “tort” or civil offense for which the offended party can sue you for damages? Often, the answer is both. Consider the infamous O.J. Simpson murder case. He was acquitted at a criminal trial but later held responsible in civil court and ordered to pay millions in damages. And there’s no “double jeopardy” problem under the 5th Amendment because that only forbids two criminal prosecutions. One criminal prosecution followed by a civil suit for money damages is perfectly O.K. because they are different types of law serving different purposes in society. Also, civil cases and criminal cases have different standards of proof and different rules of evidence and procedure.
Some crimes do not involve any harm or loss to any particular victim, so they normally cannot be something to sue over. The plaintiff who files a lawsuit must have “damages” or the law will say they don’t have “standing” to be the plaintiffs in that case. That’s why you can’t sue drunk drivers who don’t crash into anything, or drug dealers who operate in your neighborhood. Often these “victimless” crimes are called malum prohibitum crimes. That’s a Latin phrase meaning “bad because the law says so.” Usually the type of crimes you can sue over would be classified in the law as malum per se crimes– bad because it’s just naturally bad. These are the crimes that have an identifiable victim and the loss to that victim is clearly felt.
In Georgia, if the person who harmed you is caught and criminally prosecuted, you can let the State seek restitution on your behalf as part of the sentence. The Judge can order that reimbursing you for your losses is a condition of that criminal’s probation, assuming at least part of their sentence will be on probation. There are limits on what kinds of damages are available this way, but in some cases it’s a good alternative to suing the offender in a civil action. And as long as the criminal is on probation, he or she cannot refuse to pay you without violating his or her probation and possibly being incarcerated. This is not something you can threaten somebody with over a civil debt normally, outside of the probation and restitution setting. Threatening somebody with jail over a debt is a violation of the Fair Debt Collection Practices Act, and it is also contrary to the Constitution of the State of Georgia, which says that there shall be no imprisonment for debt (Article 1, Section 1, Paragraph XXIII).
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