Civil Compromise for a Criminal Offense
In some states, a court can dismiss a misdemeanor charge if the defendant settles (pays money) to the victim of the crime. This is called a civil compromise of a criminal action. Civil compromise is a type of restorative justice, which allows the parties to craft a resolution that meets their needs. The benefits of civil compromise include:
- compensation to the victim
- quick and efficient resolution of the matter, and
- no criminal record for the defendant.
Although state laws vary, civil compromise is generally available only when:
- The same act results in criminal and civil liability. For example, a burglary is a criminal act, and if the burglar has damaged or taken property, the homeowner would also have the basis for a civil suit against the burglar. Often, the burglar’s sentence will include an order of restitution (repayment to the victim for any losses incurred), which will spare the victim the expense and hassle of bringing a civil suit.
- Before the case goes to trial, the victim formally states that he or she is satisfied by the compromise. This element is crucial— the victim must tell the court that he or she desires this outcome, and do so before trial begins. The idea behind this rule is that, in appropriate cases, the public interest is best served by immediate and full restitution to the victim, rather than drawn out court proceedings.
- The judge (and sometimes the prosecutor) must consent to the compromise. This requirement ensures that the compromise is fair to all the parties involved.
- The crime is a misdemeanor. Felony charges are not fair game for compromises, as explained more fully below.
In states that do not specifically authorize civil compromise, or in a state that does permit civil compromise, but where the law’s requirements are not met, a payment to the victim will not prevent criminal charges or conviction. In other words, a defendant’s offer to pay the victim for the consequences of his criminal act will have no bearing on whether the prosecutor presses on with the case.
The Same Act
Civil compromise is permitted only if the same act results in criminal and civil liability.
Same act. For example, if a defendant punches someone in the face, the defendant has committed the crime of battery and can be charged with that crime. The defendant has also committed the tort of battery, and the victim can sue the defendant in civil court for damages (money) that will cover medical costs, lost wages, and pain and suffering. In states that allow civil compromise, a misdemeanor battery case could be compromised because the same act (hitting) results in civil and criminal liability.
Different acts. In contrast, if a defendant drives drunk and hits someone’s mailbox and is charged with driving under the influence (DUI), the drunk driving charge could not be compromised even if the defendant replaces the mailbox. Driving drunk is one act, but damaging property is another. Although a common accompaniment, property damage is incidental to the crime of drunk driving.
Misdemeanors Only, But Not All
Usually, only misdemeanors can be dismissed as a result of a civil compromise. (In most states, misdemeanors are crimes punishable by up to one year in jail; by contrast, felonies are more serious crimes, punishable by state prison terms.) Felony charges are inappropriate for compromise because serious crimes endanger and harm the entire community, not merely the victim, and payment to the victim does not redress the harm done to society. Civil compromise may be allowed in misdemeanor hit-and-run cases (those that involve only property damage), assault or battery cases that do not cause serious injury and are not against specially protected victims, petty theft, shoplifting, vandalism, and fraud.
However, not all misdemeanor charges can be dealt with in a civil compromise. Historically, civil compromise was available in domestic violence cases, but many states have outlawed civil compromise in these situations. The fear is that even though the option technically rests with the victim, many victims will feel pressure from their abuser to initiate a compromise that may be to their detriment. In addition, domestic violence is increasingly viewed as a crime not only against the victim, but also against the family and society as a whole.
Civil Compromise in California
In California, the court can approve a civil compromise of a misdemeanor charge. Like many other states, California does not permit compromises in certain kinds of cases for public policy reasons. No compromise is permitted when:
- the act is committed against or by a police officer performing official duties
- the act is done “riotously”
- the defendant intended to commit a felony
- the case involves domestic violence or a protective order, or
- the case involves elder or child abuse.
The victim must appear in court and say that he or she is satisfied with the compromise. The judge is not required to accept the compromise, but if the judge is satisfied with the compromise, then the case can be dismissed. (Cal. Pen. Code §§ 1377, 1378.)
Pursuing a Civil Compromise
A criminal defendant can pursue a civil compromise by appealing directly to the victim or by talking to the prosecutor (which should be done via the defendant's attorney). No matter which way you approach a civil compromise, it must be handled delicately to avoid further problems. Similarly, a victim who seeks compromise may raise the issue with the prosecutor. But victims, too, must take care. Someone who fails to follow the law could be arrested for compounding a crime (failing to report a crime or hampering a criminal prosecution in exchange for money), or extortion.
For more information on extortion, see Extortion: Laws, Penalties and Sentencing.
The Value of Legal Assistance
If you are charged with any crime, you should consult a criminal defense attorney. If you are the victim of a crime and you would like to seek a compromise, you should also talk to the local prosecutor or another attorney. A local attorney can tell you if your case is suitable for civil compromise and, if so, guide you through the process, and advise you as to the appropriate amount. A person who attempts civil compromise without a full understanding of the rules risks antagonizing the victim or the victim’s family, running afoul of the law, and even further criminal charges. An attorney can help you navigate the process and obtain the best possible outcome in your case, including a successful civil compromise and all the benefits that come with it.