The Difference Between Civil and Criminal Law

Criminal law has three fundamental differences from civil law. First, criminal law is primarily statutory law. Second, criminal violations do not require an identifiable victim — the criminal law protects society's interests. Third, the burden of proof in a criminal case is significantly higher than in a civil case. These differences are important to understanding the operation of the criminal justice system.

The Statutory Basis of Criminal Law

Although the roots of the criminal law are in the common law, all of today's criminal law is statutory. The definition of what constitutes a crime is established by the legislature. Congress defines federal crimes; state crimes are defined by the state legislatures. The definition of a crime specifies the act that constitutes the crime — all crimes require a prohibited act and a prohibited intent.

  • The Prohibited Act

    The statutory definition of a specific crime includes a description of the prohibited act. The description must be sufficiently specific to allow persons to avoid committing the act. The requirement of specificity contrasts with tort law, where an “unreasonable” action can lead to civil liability. The criminal law does not permit such vague terms. Thus, while it may not be unreasonable to drive more than thirty miles per hour through a school zone, it is a violation of the criminal statute.

    The requirement of an act is an important part of criminal law. A person cannot be punished for thinking about doing a prohibited act. The commission of a crime requires that the thought be turned to action and that the act be one that harms society.

    In most cases, a person must actually do something to commit a criminal act. The requirement of an act of commission is our most common understanding of a crime — a person commits a robbery, commits a theft, or commits a murder. The doing of the prohibited act defined in the statute is the crime.

    Some crimes, however, are defined by the failure to act. These acts of omission define the crime as not doing something the law requires you to do. The failure to register for Selective Service or to pay taxes is a criminal act that is committed by not doing something. Crimes of omission are usually the kind of act that furthers a regulatory scheme of the government. There are very few crimes of omission against persons or property.

  • The Prohibited Intent

    The level of intent varies with the crime, but some degree of intent is necessary for a crime to be committed. For example, first degree murder requires a high degree of intent. The defendant must form the intent to kill another human being, but must also have held that intent long enough so that the death is premeditated (sometimes called “malice aforethought” ). On the other hand, the intent required to commit the crime of speeding is merely the intent to do the act of driving above the speed limit.


    The issue of the required mental state is central to several common criminal defenses. For example, a claim of insanity is based on the idea that a person suffering from certain mental illnesses cannot distinguish between right and wrong. These people do not have the required mental state to commit a crime. Similarly, the juvenile justice system treats children differently because criminal acts by children do not indicate the same mental state as criminal actions by adults.

    The element of intent helps us determine the degree of punishment that is proper for a particular crime. The defendant's state of mind at the time of the crime is part of the definition of many crimes. Both first-degree murder and manslaughter require the act of taking a life.

    The difference between the two crimes is the state of mind of the defendant — premeditation is different from a crime of passion or recklessness. The criminal justice system punishes a death due to premeditated murder more severely than one caused by recklessness.

Crimes Are Offenses Against Society

Many crimes have victims. When a burglary, rape, or assault is committed, we are able to identify a specific person who was harmed by the act. There are, however, crimes that do not have an identifiable victim. These “victimless” crimes do not cause harm to a specific person, but are offenses against society as a whole. Prostitution and many drug crimes are described as victimless crimes.

There is no requirement that a specific person be harmed by a criminal act. Acts that are defined as criminal present a danger or harm to society and it is in society's interest to prohibit these acts. In a criminal case, the prosecutor acts for the good of society, not for the benefit of a particular person. For this reason, the state is empowered to enforce the criminal law without the consent of the victim. No crime requires the victim to “press charges.” If the state can prove the required elements of the crime from available evidence without the cooperation of the victim, the cooperation of the victim is not needed.

The Burden of Proof

All crimes require the state to prove that the defendant committed the prohibited act and possessed the required state of mind. The proof of these elements must be established “beyond a reasonable doubt.” This burden of proof is one of the primary distinguishing differences between the criminal law and civil law. The other is the presumption of innocence. Taken together, the presumption of innocence and the burden of proof beyond a reasonable doubt protect individual citizens from an overreaching government.


The presumption of innocence is simply a means of requiring the state to prove its case. It does not mean that the defendant is actually innocent. In fact, our criminal justice system does not rely on proof of innocence. A defendant is found guilty when the state has proven its case and not guilty when the state has not proven its case. A verdict of not guilty is not the same as a finding of innocence.

  • The Presumption of Innocence

    The presumption of innocence is at the heart of the American criminal justice system. This presumption extends to all elements of the criminal charge. The government has the burden of proving every element of the criminal charge; the defendant need not produce any evidence or prove any fact to prevail at trial.

  • Proof Beyond a Reasonable Doubt

    Proof beyond a reasonable doubt is the highest level of proof required in the law — it is the kind of proof ordinary people rely on in making important decisions. It is required in all criminal cases because criminal cases involve prosecution and punishment by the state. Conviction of a crime can be punished by loss of liberty, but only monetary interests are at risk in a civil case.

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