Can a criminal defense lawyer also represent a crime victim?
At Coastal Law, we aggressively represent defendants who are accused of crime, doing everything that is legally and ethically in our power to ensure that our client’s rights are protected, to get their case dismissed, to negotiate a resolution our client agrees to, or to win our client’s case at trial.
In some cases, however, we also aggressively help crime victims to get compensation for their injuries (although never in the same case – we cannot represent a defendant and a crime victim in the same case).
How does a crime victim get compensation, though? There are several ways a crime victim can get compensation in the form of a judgment or restitution, including:
- A civil lawsuit against the defendant, their employer, or other responsible parties,
- Restitution as part of the criminal case, or
- Compensation from the SC Crime Victim Compensation Fund.
In Some Cases, Crime Victims Can File a Lawsuit for Compensation
The defendant had a duty to you (for example, to follow the traffic laws intended to keep motorists safe), they violated that duty (for example, by running a red light), and their negligence resulted in damages (for example, personal injury and property damage in an auto accident).
Lawsuits can also be based on intentional conduct, however – if someone intentionally causes you harm, that is even worse than a person hurting you because of their negligence.
What Types of Compensation Can a Crime Victim Get in a Lawsuit?
You are entitled to recover all damages that were caused by the defendant’s conduct, which could include:
- Medical expenses, including your current and future medical costs,
- Pain and suffering,
- Emotional distress,
- Property damage, and
- Punitive damages.
When a defendant’s conduct was intended to harm the plaintiff (most criminal offenses), there is no cap on punitive damages in SC (see SC Code § 15-32-530).
When Can a Crime Victim File a Lawsuit for Compensation?
The problem in many cases based on criminal conduct is that there is no source for recovery because the defendant does not have assets or resources with which to pay a judgment…
Even where there is clear liability, there is no lawsuit if there is no possibility of recovering money from the defendant.
As a practical matter, most attorneys will only file a lawsuit if the defendant has assets from which you can collect a judgment, if there is an insurance policy that would cover the conduct in question, or if the defendant’s employer or another business can also be held liable for their conduct.
What can you do if you cannot file a lawsuit for compensation?
Restitution is Mandatory When a Defendant is Convicted of a Crime
SC Code § 17-25-322 requires the court to hold a hearing to determine the amount of restitution in any case where a defendant is convicted of a crime that resulted in a financial loss to a victim.
In setting the amount of restitution, the law requires the court to consider:
(1) the financial resources of the defendant and the victim and the burden that the manner or method of restitution will impose upon the victim or the defendant;
(2) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;
(3) the anticipated rehabilitative effect on the defendant regarding the manner of restitution or the method of payment;
(4) any burden or hardship upon the victim as a direct or indirect result of the defendant’s criminal acts; [and]
(5) the mental, physical, and financial well-being of the victim.
The victim has the right to be heard on whether and how much restitution the court orders, but you must also be proactive in communicating with the solicitor’s office, and you should be present at the sentencing hearing to address the court and answer any questions the judge may have.
Restitution in a criminal case is not full and fair compensation – in many cases, you will be fortunate if you can recover your medical expenses, and you cannot recover non-economic damages or other types of damages you may have received in a civil lawsuit like punitive damages.
Also, restitution is usually received in payments over time that are collected by the probation department and then forwarded to you (after they take a collection fee), which means that, if the defendant pays the restitution, you will likely only see part of it, and it will be in small increments.
SC Crime Victim Compensation Fund
There is a Crime Victim Compensation Fund that might be available to help you by paying up to $15,000 in compensation for:
- Medical expenses,
- Dental expenses,
- Counseling services,
- Lost wages or lost support, or
- Funeral and burial expenses.
The Crime Victim Compensation Fund is a last resort that is available only when all other sources of recovery have been exhausted or are unavailable. It will not compensate you for intangible losses like pain and suffering, and it will not include punitive damages.
Items listed by the AG’s office that will not be paid include:
- Property Damage,
- Property Replacement cost,
- Crime Scene Clean-up,
- Household Utilities,
- Babysitting Expenses,
- Attorney fees, and
- Pain and Suffering.
Before distributing any funds, they will also consider your own culpability, including whether you contributed to the crime or caused your own injuries.
Can You Sue the Police or Prosecutor?
Although government agencies can be sued under the SC Tort Claims Act or 42 USC § 1983, in most cases, you cannot sue the police or a prosecutor for failing to protect you.
The SC Victim’s Bill of Rights, found in Article I, Section 24 of the SC Constitution, specifically states that “[n]othing in this section creates a civil cause of action on behalf of any person against any public employee, public agency, the State, or any agency responsible for the enforcement of rights and provision of services contained in this section.”
The “public duty doctrine” provides that a government entity, such as a police department or solicitor’s office, cannot be held liable for injuries that result from a duty owed to the public as a whole as opposed to a duty owed to a particular individual.
Also, police are protected by qualified immunity, which allows a lawsuit to proceed only when the police “violated a ‘clearly established’ statutory or constitutional right,” and prosecutors may be protected by absolute immunity for actions taken in court and discretionary decisions in cases they handle.
Questions About Compensation or Restitution for Crime Victims?
All too often, South Carolina courts fail crime victims. If you feel that you need help navigating the criminal justice system, ensuring that your voice is heard, and recovering compensation, call a victim’s rights attorney at Coastal Law now at (843) 488-5000 or message us online for a free consultation about your case.