No Conviction? You Can Still Sue: Ohio's Civil Remedy for Victims of Criminal Acts

Published August 20, 2020 · Ohio Supreme Court

"The prosecutor isn't going to charge him." "The jury found him not guilty." "They let him plead to something minor." I hear these words from people who were beaten in a parking lot, hit by a drunk driver, or abused by someone they trusted. Usually what follows is the question: does that mean I have no case?

On July 29, the Supreme Court of Ohio answered that question clearly. In Buddenberg v. Weisdack, Slip Opinion No. 2020-Ohio-3832, the Court held that a person injured by a criminal act can recover damages in a civil lawsuit without first showing that anyone was convicted of a crime.

The statute: R.C. 2307.60

Ohio has a statute written specifically for crime victims. R.C. 2307.60(A)(1) provides that "[a]nyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law." The same subdivision allows recovery of attorney fees and costs where another rule or statute authorizes them, and punitive damages where R.C. 2315.21 or another statute allows.

Four years ago, in Jacobson v. Kaforey, 2016-Ohio-8434, the Supreme Court held that this statute independently authorizes a civil action for damages caused by criminal acts. I wrote about that decision in our 2017 post on suing after a crime. What Jacobson left open was what a victim had to prove. Defendants across Ohio had been arguing that the words "criminal act" meant a crime someone had actually been convicted of.

What the Court decided

Buddenberg arrived at the Supreme Court as two questions sent by a federal judge in Cleveland, who was handling a lawsuit by a former county health-district employee. The defendants argued that her claims under R.C. 2307.60 and the intimidation statute had to be dismissed because no one had been convicted of anything.

The Court rejected that argument and answered both questions "no." Writing for the Court, Chief Justice O'Connor made three points that matter to every crime victim:

• The word "conviction" is not in the statute. The legislature wrote "criminal act," and the Court would not add words the General Assembly chose not to use.
• Crimes happen without convictions. As the Court put it, "crimes can be committed without a conviction. They often are." A person may never be charged, or may be charged and escape conviction for many reasons.
• A conviction is evidence, not a requirement. R.C. 2307.60(A)(2) says that certain criminal convictions, once entered as evidence in the civil case, prevent the offender from denying the facts behind them. The Court reasoned that this provision would be pointless if a conviction were required in every case. A conviction helps; it is not the price of admission.

The Court reached the same conclusion about R.C. 2921.03(C), which makes a person who commits intimidation liable in a civil action to anyone harmed. That statute also contains no conviction requirement.

Why the criminal case and the civil case are different

People are often surprised that a civil case can succeed where a criminal case did not. The reason is the burden of proof.

A prosecutor must prove guilt beyond a reasonable doubt, the highest standard in our legal system. In a civil case, the injured person generally has to prove the claim by a preponderance of the evidence, meaning it is more likely true than not. Evidence that leaves a jury with some doubt about sending a person to prison can still be more than enough to make that person pay for the harm caused.

There are other differences. In a criminal case, the prosecutor decides whether to file, what to charge, and whether to accept a plea. The victim is a witness, not a party. In a civil case, the injured person is the one bringing the claim, with a lawyer working for them and the right to gather evidence directly from the wrongdoer.

After 19 years as a Dayton police officer, I can tell you that a decision not to prosecute is often about resources, witness availability, or the high criminal standard, not about whether something wrong happened.

Who this decision helps

Buddenberg matters for:

• Assault victims, including people attacked in bars, at work, or in road-rage incidents.
• Survivors of sexual abuse, whether or not they chose to go to police or the case went to trial.
• Drunk-driving victims, where the driver pleaded down to a lesser charge or the case fell apart on a technical issue unrelated to what happened on the road.
• Victims of fraud, theft, or intimidation who suffered real financial loss.

Practical questions: insurance, collection, and deadlines

Winning a judgment is only half the job; collecting it is the other half. Many homeowner's and liability policies exclude intentional acts, so the person who committed the crime may have no insurance for it. As I discussed in April in connection with Ayers v. Cleveland, a judgment is only as good as your ability to collect it.

That is why we look beyond the individual wrongdoer from the first meeting. A drunk driver's auto policy generally still applies to a crash. A property owner who ignored known dangers may be responsible under Ohio's negligent-security rules. An employer may have its own liability. Identifying every responsible party is often what turns a valid claim into a real recovery.

Deadlines also matter, and they can be short. Under R.C. 2305.111(B), a claim for assault or battery generally must be filed within one year. Other claims carry different periods, and a negligence claim against a property owner or employer may run on a different clock than the claim against the attacker. Waiting for a criminal case to finish before calling a lawyer can cost you the civil case entirely.

What this means for you

• You can sue for injuries caused by a criminal act in Ohio even if no one was charged or convicted.
• A conviction, if there is one, can make the civil case easier to prove, but it is not required.
• The civil burden of proof is lower than the criminal one.
• Do not wait on the criminal process. Read our guide chapter on why you should talk to a lawyer early and call before deadlines run.