Shaken baby syndrome is not definitive proof of child abuse

Controversy surrounding “shaken baby syndrome” (SBS) is taking centre stage again. The American Academy of Pediatrics (AAP) meets today with a session underscoring the message that most paediatricians – child abuse specialists among them – say it remains a “valid” diagnosis.

In other words, the paediatric community continues to believe that shaking can bring about one or more of the classic triad of neurological symptoms: bleeding beneath the outer layer of membranes surrounding the brain, bleeding in the retina, and brain swelling. This is likely to prompt vigorous opposition from those within the medical community who challenge the scientific underpinnings of SBS.

It is also likely to resonate with the public, many of whom assume that this diagnosis alone amounts to proof beyond a reasonable doubt that a caregiver or parent injured or killed a baby by violent shaking. It does not.

Yet for decades such prosecutions did rest on the testimony of medical experts regarding the triad. Doctors came to court and explained that vigorous shaking – not an accidental jostle or an effort to revive an unconscious child – was the only possible explanation for those symptoms. The triad was even used to identify a perpetrator – whoever was last with the lucid baby.

SBS could, in essence, be a medical diagnosis of murder. Beginning in the 1990s, triad-only prosecutions became increasingly commonplace, sending many caregivers to prison.

DIAGNOSIS SHIFT

But the diagnosis morphed. In 2008, an appeal court in Wisconsin was the first to recognise this, releasing a woman who had spent over a decade in prison for shaking a baby to death. According to the court, a “shift in mainstream medical opinion” regarding the triad raised serious doubts about whether the caregiver had done anything to harm the child.

Whereas the triad was once thought to result only from forceful shaking by the person last with the baby, the diagnostic picture has become a lot more ambiguous. As the AAP session illustrates, there is still disagreement on a rather crucial point – whether the diagnosis indeed rests on scientific foundations. But even among those who defend it, the new version of SBS (or abusive head trauma as it is now officially known) is very different from its predecessor.

This shifted consensus is, from a criminal justice perspective, even more important than lingering debate about diagnostic validity. Regardless of whether it is possible for shaking to bring about the triad, doctors agree on this: the triad can no longer be considered proof that a baby was shaken by the last caregiver.

As a leading child abuse specialist and proponent of the diagnosis acknowledged several years ago, “no trained paediatrician thinks that subdural haemorrhage, retinal haemorrhage and encephalopathy [brain damage] equals abuse”.

Over time, the meaning of the triad of symptoms has become less certain as new explanations have emerged. No longer can the triad be used to identify a time frame (and thus, a perpetrator). No longer can it pinpoint a specific causal mechanism (violent shaking) that established a crime had been committed. No longer does the presence of the triad necessarily mean that a baby was abused.

The certitude that once surrounded SBS has been dissolving for years; even the AAP calls the new diagnosis “less certain” than the old. In short, the triad can no longer prove guilt. The paediatric community’s continued commitment to SBS does not change this.

—————

Deborah Tuerkheimer is a professor of law at Northwestern University in Evanston, Illinois, and the author of Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice (OUP)