Well if you can, file both. A criminal case is the state or the people versus the defendant. Usually, it is a crime against society and if you are guilty, you have to pay your debt to society and that means the perpetrator goes to jail. The civil case, rather than looking it as a crime against the state, we look at it as a crime against an individual. It might be the very same act of abuse was a violation of criminal law that you can go to jail for, but that act hurt an individual person.
So the civil case is the victim versus the perpetrator, the victim versus the defendant. It’s about perpetrators and other responsibility parties being held directly accountable to the victims for the harm that they caused. There’s also a greater balance of power between victims and perpetrators in a civil case, because in a criminal case it’s the state versus the defendant and the victim is basically a witness for the prosecution. But in the civil case, the victim is a party to the case. The lawyer works for the victim. The victim decides whether or not they want to accept a settlement. In a criminal case, the victim may be asked but they do not have ultimate veto power over whether or not they accept a plea deal. In some places, a prosecutor may have to ask them, but they certainly don’t have to listen to what the victim says. So there’s a greater balance of power.
So I would tell a jury that they only have to be 51% convinced that this person is responsible. In the criminal system, if someone is prosecuted, convicted and incarcerated, we take away their freedom. In our society we value freedom above all. In civil cases, we’re not taking their freedom, we’re just taking their money. Civil cases have a lower burden of proof; they’re an easier hurdle to cross. Civil cases have broader definition of accountability.
In the criminal case, prosecutors has a tougher job. They need to prove beyond a reasonable doubt that the perpetrator engaged in conduct which violated the statute and that they did so with criminal intent. It’s a tough job but it’s also really narrow. The criminal case doesn’t care who hired this person to work with kids in the first place, or why weren’t there any locks on the doors. The civil case has a broader definition of accountability.
That’s where we get to the institution. That institution maybe did not intend for the kid to be molested. That institution did not molest that kid themselves but they are still legally responsible because they set up the environment that allowed that abuse to happen. And just because someone has been criminally prosecuted and acquitted doesn’t mean you can’t sue them. Look at O.J. Simpson. Simpson was prosecuted in civil and criminal case. Let’s say the jury was the same in both cases and they heard all the same test and evidence and they were 75% convinced, that doesn’t meet that burden of beyond a reasonable doubt, but it is more than enough to meet the burden of a preponderance of the evidence. Victims should do both and they should have the information to be able to make that decision, but unfortunately the problem with the statute of limitations is that the decision has been made for them, and the clock has run out; they didn’t have a choice.