About 20 years ago, those of us who practice law in criminal courts began to see prosecutions for child abuse, with allegations that the young child had sustained brain injury that was the cause of shaking the baby violently — what became known as “Shaken Baby Syndrome.” The indicia of SBS seemed to me to be inadequate to sustain a verdict by proof beyond a reasonable doubt, but doctors would come in to testify about SBS, prosecutors who didn’t understand the medicine would argue passionately that this poor, protesting defendant (usually the mother’s tattooed boyfriend), and judges would obligingly convict of a felony and send the miscreant to the penitentiary.
The problem is that more thorough scientific work has shown us that SBS isn’t all that the testifying doctors said it was. A recent study by doctors and law professors at the University of Wisconsin, Stanford, and the University of Michigan concluded:
In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are many natural and accidental causes for these findings, and that the onset of symptoms does not reliably indicate timing.
In an article to be published in the Houston Journal of Health Law and Policy, available on line here, the authors review the medical literature, and call for the legal system to stop accepting SBS diagnoses so uncritically:
In the past decades, thousands of parents and caretakers have been accused – and many convicted – of abusing children based on a hypothesis that is not scientifically supported. While we must do everything in our power to protect children, we must refrain from invoking abuse as a default diagnosis for medical findings that are complex, poorly understood and have a wide range of causes, some doubtlessly yet unknown. To this end, we are calling for collaboration between the medical and legal communities for the sole purpose of “getting it right.”
Id.
I am not going to rehash the article — it is excellent, and needs no amplification from me. I have fought SBS diagnoses in court (won some, lost some), and I will be glad the next time that I will have this summary of the literature to give to a judge, or to use to cross-examine an expert.