Criminal and civil law are often confused. Here’s a quick rundown of how the two are different. (Like everything, this gets blurry around the edges.)
Criminal Law
- The government enforces them. You can’t prosecute somebody else for stealing, but the government can.
- Penalties include fines, jail time, and sometimes death.
- Criminal law is generally reserved for things that are clearly wrong. It’s not always the degree of harm that is important in criminal law, but the clarity. For example, stepping over an arbitrary line might be a criminal tresspass. But in that case, you knew the line was there, didn’t have to step over it, but did it anyway. On the other hand, things like intentional infliction of emotional distress, while awful, are generally not criminal.
- Things like attempt and conspiracy matter. If you shoot at somebody and miss, that’s attempted murder.
- Intent is also incredibly important. There aren’t (many) cases where you can accidentally violate criminal law.
- Criminal law carries society’s condemnation. Or at least it should. Chances are, most of you haven’t broken many criminal laws, excluding those involving the drinking age and possibly some drug laws. The frequency with which those are broken should make us reconsider whether it makes sense for them to be criminal laws or whether they dilute society’s condemnation.
Civil Law
- Civil law is privately enforced. If somebody breaches a contract or negligently injures you, you can sue.
- Civil law is not punitive (except for when it is—but we’ll ignore that for now). The point of civil law isn’t for somebody to show how bad somebody is and make them suffer. Instead, it is to fix whomever is injured, usually in the form of giving them money.
- It doesn’t make much sense to talk about “breaking civil law”. Instead, we can talk about “causes of action.” These are places where somebody could sue you if they chose and if they were injured. If you’re a minute late to work, are you breaching a contract with your employer? If you carelessly bump into somebody on the subway, is that battery? If you negligently throw a rock in the park, is it negligence if nobody is hit? (Please do not copy this next sentence; if you accidently copied it, please immediately destroy all copies.) When you read this sentence and do not immediately remove all record of it from you computer, including the browser cache and the RAM, have you violated copyright law or breached a contract? Of course, many crimes have accompanying civil causes of action. A murder is also a wrongful death.
- Attempt does not matter. The most important thing is the actual harm done. If you shoot at somebody and miss, you’re definitely in trouble for something—but it’s not wrongful death.
- Intent is not as important. Negligence will suffice for many torts. And in contract actions, it doesn’t really matter whether you intended to breach the contract or not.
- Civil law does not have the force of societal condemnation. Maybe you contracted to write an article for a magazine by Wednesday. Your computer crashes Tuesday night. You failed to back anything up. You breach the contract. It’s not a good thing—and the magazine might be able to sue you. But you’re not necessarily an awful person.
This is the long way of saying that I don’t care if Lori Drew was a horrible person—she should not have been convicted the way she was. Since I’m cluttering your screen already—here’s the background story.
Lori Drew is the mother who used a fake MySpace account to torment a psychologically unstable girl who had had some fight with her daughter. The girl killed herself. Lori Drew was convicted “on three counts of a lesser misdemeanor charge for simply accessing MySpace’s computer system to obtain information about and from Megan.” In other words, she was convicted for going to a webpage while violating MySpace’s Terms of Service. The law she was prosecuted under was an anti-hacking law.
Now, Lori Drew is not a good person—but she wasn’t convicted of being a bad person. There is no law against being a bad person. She was convicted of being a hacker—and Lori Drew is nowhere near 1337 enough to justify this conviction. (Lori Drew is 7h3 v1r61n pr1nc355 0f N00b|4nd.)
Does it matter if she was convicted of the wrong thing? Afterall, while some of us are mourning for the law, nobody is crying too many tears for her. But it does matter. Civil law has a lot of wiggle room in it. But criminal law should be blind to the attrociousness of the accused. Did this person do what they were accused of doing? Is there sufficient evidence to convict?
Let’s be clear. Lori Drew was convicted because neither the prosecutor nor the jury liked her. Criminal law should not be a popularity contest. It should be clearly written and evenly applied. It should not be stretched to convict those whom we want convicted of something.
