The issue of child abuse has continued to gain public attention over the years; many of the forms have been recognized as crimes that carry significant repercussions of a conviction. Shaken baby syndrome (SBS) is one such situation. Although medically speaking the results of shaking a baby have been clearly defined, the legal aspects that separate accidental and intentional harm to an infant is still debatable.
The primary caregiver to a baby is most likely the person to be accused of abusing the infant through shaking; as it were, this incident is most likely to occur when such is alone with the baby thus removing the possibility of an eyewitness account of such a crime. Consequently, Shaken baby syndrome cases have the peculiar characteristics of having medical professionals and experts taking center stage in the presentation of evidence and testifying for or against the defendant. This coupled with the fact that there is no consensus among these professionals regarding the various issues of medical evidence for or against the defendant in such a case can lead to a dilution of legal standards used to determine the innocence or guilt of such a defendant.
Additionally, the emotional perceptions of child abuse and/or infanticide can put a defendant at a clear disadvantage of winning such a case despite innocence or guilt. Alternatively, the society (and a jury) might be compelled to believe that (for example a mother) could not possibly harm (her) infant. All these are precipitated by confusing medical evidence which they might unconsciously ignore or fail to comprehend. On the other hand, child abuse is a reality and such perpetrators have to be tried, convicted, and sentenced without having the choice of hiding behind an excuse of accidental injury.
The attention of the world was first drawn to the shaken baby syndrome in the widely covered trial of Louse Woodward, a British nanny accused of killing Matthew Eappen, her charge. The nanny was found guilty and convicted in 1997. Stemming from the public understanding of the case, now any case presented in many hospitals suggestive of Shaken Baby Syndrome (SBS) is usually treated with criminal suspicion [Gena, 2007].
However, the validity of diagnoses of SBS as the cause of infant mortality closely linked with criminal prosecution and conviction has not reached a consensus among the medical professionals; this is exhibited in the various trials where respected members of the medical profession take opposing sides regarding the culpability of the defendant in causing the demise of the deceased in question.
Shaken baby syndrome
This refers to a whiplash injury that occurs on the brain of a baby when it is violently shaken; the injuries sustained are strikingly different and distinct from brain injuries sustained by other methods such as falling.
The syndrome was first described by John Caffey in 1972 as the ‘whiplash shaken infant syndrome’ that resulted in hemorrhage in the brain and the retina without any sign of external head trauma [Caffey, 1972]. SBS is more often than not fatal to the victim; in the United States, it is estimated that between 1200 and 1600 infants every year are presented with signs suggestive of the injury [CDC, 2006]. The SBS is also estimated to cause about 50% of all deaths arising from child abuse. After a non-fatal SBS episode, the well-being of the victim is usually affected resulting in complications such as complete or partial blindness, cerebral palsy, and learning disabilities.
SBS is however a legal description than a medical one; while whiplash injury in a baby can occur from any situation that causes rotational acceleration and deceleration of the head, SBS refers to the act of holding the infant by the torso then rocking it violently back and forth; this causes blood vessels connected to the brain from the skull to rupture leading to hemorrhage, poor oxygen supply, swelling of the brain and death.
Infants who have younger than three years old are at significantly more risk of sustaining SBS injuries simply due to anatomical predilections; the bay’s head is naturally large and heavier in proportion to the body. Additionally, the cervical vertebral muscles and ligaments are not completely developed, thus the neck cannot effectively resist severe shaking. The infant parenchyma is additionally completely myelinated; the process usually completes as the child grows; the completion of this process also involves reduction of the water content in the brain tissue; effectively, the infant’s brain is significantly prone to severe injury even from minor trauma [Jentzen, 2001].
Nature of SBS
The rotational acceleration and deceleration injuries associated with SBS generally involve diffuse damage to the neural axons. Other accompanying conditions include swelling of the brain and the associated cerebral hypoxia and increased intracranial pressure; hemorrhage in the retina, subdural and subarachnoid hemorrhage [Jentzen, 2001]. The occurrence of CNS damage without any accompanying signs of an accident is usually assumed to be caused by SBS. Although many cases do not present with any physical injuries, SBS may be accompanied by fractures of long bones cervical vertebrae, and ribs. When the babies are presented as emergency cases, they usually exhibit signs ranging from lethargy, convulsions, swollen and tense fontanel; respiratory difficulties, and dilated pupils [Jentzen, 2001; Arbogast et al, 2005].
The SBS triad
The perception of SBS as evidence of child abuse and possible criminal proceeding has led to the formulation of the triad of signs which when a clinician recognizes an infant, immediately suspects SBS. The three signs that make up the SBS triad are swelling of the brain, hemorrhage in the retina; and subarachnoid and/or subdural hematomas. A subarachnoid hematoma is the pooling of blood between the arachnoid layer and the Pia mater of the brain following rupture of blood vessels following violent shaking. On the other hand, a similar mechanism occurs between the Dura mater and the arachnoid layer to form subdural hematomas [Jentzen, 2001].
Whereas these three injuries can occur independently from other reasons than affect the brain, scientists argue that the combination of these three injuries in an infant victim can only be attributed to SBS [Geddes and Plunkett, 2005].
SBS and child abuse
SBS is usually blamed on a caregiver; it may be caused by ignorance of the dangers of shaking a baby. In most cases, it is usually blamed on frustration from the constant crying of the baby. Men represent the majority of caregivers accused of SBS; these include fathers and step-fathers which is the biggest group. This is followed closely by the mothers’ boyfriends. An increasing number of nannies and babysitters are also being accused of child abuse in form of SBS.
The caregiver, who is supposed to protect the baby from any harm, paradoxically ends up causing its death; many reasons have been advanced to explain this occurrence. One of them is in regards to the caregiver’s unrealistic expectations on the role of the baby in their relationship. Other triggers of misplaced aggression include drug and alcohol abuse, emotional stress, mental illness, and impulsive behavior. The incident that causes fatal illness to the baby has been shown to have been preceded by similar incidences in the infant’s life; this is evident from old intracranial hematomas found in 33-40% of the SBS cases at postmortem [AAP-CCAN, 2001]; the victims therefore usually have a history of abuse before their death.
Legal issues surrounding shaken baby syndrome
The nature of SBS as a crime presents among the biggest points of acrimony between and within the medical and legal fraternity. Criminal cases involving SBS are usually complicated; for starters, since the caregiver is usually alone with the infant during the occurrence of fatal illness, there are no witnesses to corroborate any other evidence presented in the trial. More often than not, the trial degenerates into an answering match between the legal experts hired by either side to explain the cause of death and the possible link to SBS. By placing such a burden on medical evidence rather than another non-contentious source, either side is left with the task of convincing the jury, through technical descriptions by medical experts, of the guilt or innocence of the defendant in the death of the infant.
From this point, two scenarios can arise as the jury gets confused by the medical jargon. Moved by the severe injury and/or untimely death of an innocent infant in the hands of the caregiver, the jury might return a guilty verdict to punish for the perceived crime regardless of medical evidence that ideally should be taken as reasonable doubt. Alternatively, the jury might hand the defendant an acquittal from the sentiment that the caregiver, particularly a mother, could not have intentionally caused her infant grievous harm [Gena, 2007]. Thousands of people have been convicted and imprisoned for SBS based on the medical evidence based on the occurrence of the triad in the victim. The triad has however been challenged as not being an accurate measure of the culpability of the defendant and its being the sole determinant of the defendant’s (together with the fact that the defendant was alone with the infant during the onset of the fatal illness) guilty or innocence.
Notable convictions of SBS crimes
Among the early convictions of SBS that are notable are the People vs. Kailey whereby Randy Steven Kaiely was convicted by the supreme court of Colorado for the cerebral injuries sustained by his four-month-old daughter. The defendant claimed that the infant had spontaneously gotten ill. The baby had been admitted two months earlier for a subdural hematoma which the parents attributed to a fall from a couch. In another case, Jane Ostlund was found guilty of second-degree murder and sentenced to nearly nine years in prison for the death of her adopted daughter who the prosecution urged had been violently shaken by her mother and had a history of ill-health.
Commonwealth vs. Woodward
In a trial that captured the attention of the media and the public, Woodward, a British nanny was convicted for the wrongful death of her eight-month-old with the charge resulting from alleged SBS. The second-degree murder charger that the persecution was pursuing was reduced to manslaughter since the infant had a history of fractured cranium and hematoma. The case marked a turning point in the public, medical and legal perception of SBS [Gena, 2007].
Points of contention regarding the sbs triad
The beginning of the investigation into the possible occurrence of SBS in a medical or pathological case in an infant should always be marked by a thorough examination by a specialist of the relevant field; proper determination of SBS should involve visits by an ophthalmologist, neurologist, pediatric pathologist, and a pediatrician. The injuries to the various areas that are related to SBS are relatively specific and unique and should be properly examined and recorded for possible presentation in a court of law.
The diagnosis of SBS as a cause of infant mortality; and the use of the triad as a tool for a conviction for such death has however been cast into doubt. Players in the scientific fraternity cannot seem to agree whether the triad can occur in any other incidence rather than in SBS. The dependency on the triad alone without the corroboration of for example eyewitness accounts of shaking may be in danger of being overtaken by new scientific findings and legal doubts [Gena, 2007].
Other possible causes of the triad
Some studies have shown that the triad may not be entirely caused by SBS [Donohoe, 2003; Lyons, 2003]. other underlying conditions within the infants’ anatomy and physiology, such as disorders of the clotting mechanism, fracture of the cranium and abnormalities of the blood vessel (that are most likely inherited) may cause signs similar to those seen in SBS. While most experts agree that the action of violent shaking of an infant will most likely lead to fatal injury, the point of contention is whether the occurrence of the triad should lead to an automatic diagnosis of SBS. A commonly cited example is the finding that the mechanical force required to cause the kind of injury that would lead to the acute death of the infant is enough to severely damage the cervical vertebrae from whiplash injury, a condition that is usually absent from SBS cases. Other studies suggest that shortfalls or falls onto a soft surface, for example, a mattress may have the same effect as shaking and may lead to the wrongful imprisonment of innocent caregivers.
These intervals have been shown to occur between traumatic injury to the head where the victim looks normal then suddenly degenerates into a fatal syndrome. Many medical experts observe that after an episode of violent shaking (that would result in severe cerebral damage) a baby would immediately go into an almost-always fatal illness. A study carried out in 2005 had results that suggested that especially children that are less than four years old can appear seemingly normal even to medical staff in the period preceding sudden death with an autopsy revealing subdural hematomas [Arbogast et al, 2005].
This brings about another problem of using medical evidence uncorroborated by evidence from other sources as the main basis of a guilty verdict; the general assumption regarding SBS is that after a period of violence the effects of this will be immediately seen in the patient as clinical signs, and this is the basis of the reasoning that the person who was the last to be in contact with the infant must have caused the injury. To a large part, this is true; even the documented cases of lucid intervals are rare [Arbogast et al, 2005]. However, if they can occur, then it would be very difficult to place the defendant at the scene of the crime during its commission.
On the other hand, it would also lead to wrongful convictions of innocent caregivers who take charge of the infant during a lucid interval long after the harmful episode has taken place at the hands of another person [Gena, 2007]. Additionally, even the most accurate method of medical imaging, that is Magnetic Resonance Imaging (MRI) cannot ascertain the exact moment of the occurrence of the incident; the best it can do is give a range of hours of possible occurrence; within this range, many people may have handled the infant allowing them to commit the crime and have other unfortunate people take the fall.
Medical experts and doctors in sbs trials
Due to the peculiar nature of SBS cases, medical experts take a central role in giving opposing arguments regarding the cause of death of a suspected SBS case. This mainly stems from the fact that there are usually witnesses to give accounts of the occurrence of the crime.
Such an intimate involvement of a group of professionals that is essentially not legal-oriented has had a serious implication on the legal standards used to determine guilt or innocence. The ‘beyond reasonable doubt standard is used to protect the defendant from wrongful conviction and places the burden of proof on the prosecution side. Such a wide use of medical experts has led to the growth of another standard of ‘reasonable medical certainty. This standard is not however measurable and anchored in precedent and law like its legal contemporary; the expert is, therefore, free to interpret medical knowledge according to his opinion regarding a certain issue. Their testimonies may therefore not be objective and may be tainted by attitude, personal opinion or perception of the case.
During the trial of a suspected SBS case, the doctor handling the case is usually required to give evidence; the scope covered include the nature of the injury, the possible time frame of the injury; and the effects of the injury (that is how they caused death or the current state of the victim). However, under normal circumstances, the doctor goes a step further as to state that the triad symptoms seen in the victim can only be caused by SBS [Gena, 2007].In the light of new evidence, that occurrence of the triad symptoms is not synonymous with SBS; the physician should not overstep the boundary by trying to speculate the cause of injury to the infant.
The doctors, however, in the course of their work experience many challenges; for example, to effectively treat an emergency case, s/he has to extract information from the caregiver who presents the case. This information, which is acquired outside legal structure could very possibly affect the testimony of the doctor during the trial; for example, a history of abuse to the victim from a caregiver may as well seal the fate of the defendant if the doctors’ opinion would be convincing to the jury that the defendant was responsible for the death of the victim.
A major factor that separates the judicial system from other inferior forms of justice is the principle of reasonable doubt. If the prosecution cannot prove beyond reasonable doubt that the defendant committed a certain crime, then the court must set the defendant free.
The lack of consensus among scientific experts and medical practitioners about the true nature of SBS particularly in the question of whether similar injuries can occur outside an abusive set up is disturbing. A scenario where people can be sent to prison for a condition arising outside their knowledge and/or control is unacceptable; in the same breath, child abuse is a very true and evil reality and there are many cases where caregivers through delicate acts of malice or negligence cause the death of their charges; a scenario where these criminals are not punished due to lack of scientific consensus is also unacceptable. In an emotive issue such as the death of an innocent infant at the hands of the caregiver is likely to warp the proceedings of the case to the direction in which the society emotions are oriented and overshadow legal and even scientific evidence; SBS cases should therefore be tried with uttermost objectivity and caution so that justice can be served.
American Academy of Pediatrics: Committee on Child Abuse and Neglect (2001): Shaken baby syndrome: Rotational cranial injuries: Technical report: Pediatrics 108 (1): 206–10
Airboat Kristy B. et al. (2005): Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries: Pediatrics 180, 181
Caffey John (1972): On the Theory and Practice of Shaking Infants, 124 American Journal of Diseases & Children 161, 161, 169 (1972)
Donohoe Mark (2003): Evidence-Based Medicine and Shaken Baby Syndrome: Part I: Literature Review, 1966-1998: American Journal of Forensic Medicine & Pathology 239, 240-41 (2003)
Geddes J.F. & J. Plunkett (2004): Editorial: The Evidence Base for Shaken Baby Syndrome, 328 British Medical Journal 719
Gena Molly (2007): Comments: Shaken Baby Syndrome: Medical Uncertainty Casts Doubt On Convictions: Wisconsin Law Review 2007:701
Jentzen, Jeffrey M. (2001): Pathological Findings in Fatal Shaken Impact Syndrome: Journal of Aggression, Maltreatment & Trauma; 2001, Vol. 5 Issue 1, p199-224
Lyons Genie (2003): Comment & Note: Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept, 2003 Utah Legal Review. 1109, 1110
National Center for Injury Prevention and Control (2006): Child Maltreatment: Fact Sheet: Centers for Disease Control and Prevention (CDC)