Some readers may know me as a labor/employment and domestic relations mediator/arbitrator. However, I am also a GAL for abused, neglected kiddos. As such, I take special interest in unusual court cases involving children. I was especially upset and intrigued by a recent ABA Journal article on the heated debate concerning the scientific soundness of shaken baby syndrome theories.
The term "shaken baby syndrome" was coined in the early 1970s and, since that time, it has gained substantial traction in the legal and popular culture. Remember the British au pair in the late 1990s? As Mark Hansen notes in Unsettling Science, "[t]o this day, there is widespread consensus among medical professionals that shaking a baby is dangerous and often lethal." See ABA Journal, Dec. 2011. The National Center on Shaken Baby Syndrome estimates that 1,200 to 1,400 children are injured annually by shaking, and that about one quarter of those are injured fatally. It also opines that "the actual numbers of victims may be much higher" since "many such cases are misdiagnosed or go undetected."
Nonetheless, there is a growing chorus of doubters and critics, who insist that the scientific evidence is not solid. In particular, they challenge the validity of scientific testimony based on the so called "diagnostic triad," or "three key symptoms" including "subdural bleeding, retinal hemorrhages and brain swelling," under which some experts claim "a child with no other injures suggestive of an accident or abuse, must have been shaken." Id.
While I am--personally--deeply troubled by the notion of letting ipsa rea loquiter baby shakers get off scot-free, the documentation of medical disagreement does raise serious questions about the present validity of the presumption.
Specifically, in 1987 a neurosurgery resident at the University of Pennsylvania and a group of biomechanical engineering students, demonstrated that models or dummies of one-month-old-babies could not be shaken "hard enough to generate the kind of force known to cause even a mild concussion. In fact, the most force they could muster was about one-fiftieth the amount of force generated by dropping the dummies onto a padded surface." Id.
Then, in 1998, "a forensic pathologist at East Carolina University School of Medicine studied the interval between injury and the onset of symptoms in 76 alleged child-abuse head injury deaths. In one-quarter of the cases, the interval was more than 24 hours; and, in four cases, it was more than 72 hours, ... contradicting the conventional belief that a child with traumatic head injuries would be immediately symptomatic."
Finally, additional research in the intervening years "has shown that there are many other causes of the three symptoms associated with SBS, including: short-distance falls, congenital malformation, genetic and metabolic disorders, various forms of childhood strokes, accidental injuries,infectious diseases, poisons, medical and surgical complications, and autoimmune conditions."
Ultimately, the only way to accurately study SBS would be to shake a real baby and see what happens--clearly not an option. Meanwhile, in the face of this emergent scientific dispute, some courts are convening inquiries into SBS convictions based on the magic triad. To date, however, they have generally found most of the convictions to be sound upon review. And, as one Assistant District Attorney sums it up, "[b]abies don't just die for no reason."
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
