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Is it true that while for prosecution according to civil (private) law there has to be a party that has been wronged (I'm going to refer to as "victim" from now on) while for criminal law that does not have to be the case?

More specifically that in criminal law …:

  • Something might be a victimless crime or a crime where the victim isn't clearly defined (can't be pin-pointed to, e.g.: the "public", the "future").

  • Something might involve a victim who does not consider him or herself one (while being of sound mind, having legal capacity, etc.)

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  • In all cases someone has to have been wronged. It could be "society at large", an individual, or a class of individuals (think class-action suit).
    – user6726
    Jul 16, 2016 at 16:15
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    @user6726: Only in the trivial sense that criminality might be held inherently to wrong society regardless of the details. Criminal statues don't need to define who is wronged for example in crimes of drug possession. There may be argument as to whether or not anyone benefits from passing the law at the time it is passed, but once it's on the books all that's needed to prosecute is the statute. Prosecutors need not demonstrate the harm speculated by the legislators has actually occurred as a consequence of the actus reus (unless the specific offence calls for such a demonstration). Jul 16, 2016 at 20:18
  • This is one issue, but only one of many and not a perfect divider. Most crimes have victims and indeed many jurisdictions have specific rights in the process for victims. There are also some circumstances where someone who isn't a victim can sue civilly (e.g. civil penalty actions brought by the government). The possibility of incarceration is another major distinction between civil matters and criminal matters. In edge cases, whether something is criminal or civil is somewhat arbitrary.
    – ohwilleke
    Oct 16, 2023 at 16:24

2 Answers 2

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Yes.

In a civil case, there are two parties and the case is about finding out who has which obligations to whom. In a civil case, the plaintiff has to prove that they actually incurred damage through the actions of the defendant.

A criminal case is the state vs. the defendant. The "wronged party" is the society as a whole, usually represented by the prosecutor. The victim, if there is one, just plays the role of yet another witness to find out if the defendant needs to be punished and how.

There are also examples of crimes which are completely victimless but still punished by some societies. For example, in many places sexual intercourse between two consenting adult siblings is a crime (incest), even though there is no victim. Also, for some crimes it is even a crime to attempt to commit it. So one can be punished in a criminal court even though they didn't actually succeed in causing any damage to anyone.

Example: I throw a rock at your car. When I hit, you can sue me in a civil court and force me to pay for the repairs. When I miss, I caused no damage to you, so there is nothing you could sue about.

But what if I throw a rock at you and miss? That's attempted assault, maybe even attempted murder. When law enforcement finds out about it, I could be arrested, prosecuted and convicted to a prision sentence, even though you are perfectly fine.

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    @Utku: throwing a rock at the car might well also be a criminal offence, that just happens not to be relevant because Philipp's only using it as an example of a potential civil case. Something can be both: for a particularly famous example OJ Simpson faced both criminal and civil cases over the death of his ex-wife Nicole (and he lost the civil case). Jul 16, 2016 at 20:25
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    @Utku: A criminal case is one where the state (in the form of a prosecutor) brings a criminal charge against the defendant. A civil case is one in which a wronged party (the plaintiff, which may or may not be the state) makes a complaint against the defendant that they've wronged them in some way that the law recognises as legitimate grounds for a suit. So, the criminal case against OJ was brought by the DA's office, whereas the civil case was brought by members the Goldman and Brown families. Jul 16, 2016 at 20:28
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    Or, leaving out some of the details, it's a criminal case if the paperwork sent to the court says, "I'm accusing someone of breaking a criminal law", whereas it's a civil case if the paperwork sent to the court says, "I want to sue somebody". The appropriate rules will be applied according to the complaint made to the court. Jul 16, 2016 at 20:32
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    @Utku: actually that depends on the jurisdiction. Some places allow private criminal prosecutions, and I over-simplified by saying that a criminal charge must be brought by the state. That's the norm, though, and in that normal situation it's the prosecutor (a District Attorney, for example) who decides whether to make a criminal case. If you or your lawyer thinks that a criminal case is appropriate then (barring the rare case of a private prosecution) one of you will call either the prosecutor's office or the police to get things started. Jul 16, 2016 at 20:36
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    So for example if you're mugged, most people would call the police first, and maybe call their lawyer later for advice on whether a civil suit might be possible and/or worthwhile. Of course some people might have been advised by their lawyer, "never, ever, talk to the cops without calling me first", but that depends on their personal circumstances and degree of trust in the authorities ;-) Jul 16, 2016 at 20:42
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The criteria that determine whether a specific category of wrongdoing is addressed as a civil or criminal matter are applied by the legislature while they are crafting the laws.

Criminal law basically says, "Doing X is bad, therefore we will stop it when we see it and punish whoever did it," whereas civil law says, "If you're harmed by someone who did X, you can ask the court to make them stop doing it and pay for the damage." The divide seems to be whether the government should act without the consent of the victim and whether, after the fact, the wrong committed should be addressed by punishment or compensation.

As any first-year law student or observer of our courts can attest, the application of this divide is lacking in consistency:

  • Wrongful discrimination (which the legislature says is wrong in and of itself) is handled as a civil manner.
  • Most forms of larceny are treated as crimes, but some forms (theft of intellectual property and squatting) are handled through civil litigation and are not criminally prosecuted.
  • Civil asset forfeiture is, um, "justified" on the claim that it helps fight illegal narcotics trafficking.

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