13. Criminal Liability
When crime occurs in the context of business, some people think that no one is “really” injured. When an insurance company must pay for a claim arising from a crime, the insurance company is injured, as are the victim and society at large. Crime undermines confidence in the social order and public safety. No crime is victimless.
- Commit a criminal act, known as actus reus, and
- Possess the required criminal state of mind, or mens rea.
Intent to commit a crime, without more, is not enough to convict someone. For example, if an accountant thinks about stealing money from her company but does not take any steps to do it, then no crime has been committed.
Criminal law differs from civil law in several important ways:
- An injury to the public
- Prosecuted by the government
- Attorney provided if defendant cannot afford one
- Burden of proof is beyond a reasonable doubt
- Conviction may result in fines or loss of liberty
- Penalties may include fines and incarceration
- A private injury or wrong
- Plaintiff sues defendant
- Parties must provide their own attorneys
- Burden of proof is the preponderance of evidence
- Penalties are usually monetary
Because crimes are public injuries, they are punishable by the government. It is the government’s responsibility to bring charges against criminals. In fact, private citizens may not prosecute each other for crimes. When a crime has been committed, the government collects the evidence and files charges against the defendant.
The civil tort system allows victims to bring a civil suit against someone for injuries inflicted upon them. Indeed, criminal laws and torts often have parallel causes of action. Sometimes these claims have the same or similar names. For instance, a victim of fraud may bring a civil action for fraud and may also be a witness for the government during the criminal trial for fraud.