This article is written by Kritika Garg from National Law University, Odisha. This is an exhaustive article which deals with the legal perspective involved in Shaken Baby Syndrome.
Shaken Baby Syndrome (SBS), also known as Whiplash Shaken Infant Syndrome, is an abusive head trauma caused to an infant or a toddler by violent and repetitive shaking. The impact of SBS causes severe skull injuries and haemorrhages including Subdural haemorrhage, Retinal haemorrhage, and Hypoxic-ischemic Encephalopathy leading to disabilities and even the death of the child. An infant is most susceptible to injuries due to the physical vulnerabilities such as weak neck muscles which are not strong enough to support the neck, thin skull walls, and soft brain. Therefore, violent shaking causes the head to snap back and forth leading to a skull fracture and other severe head injuries.
SBS takes the form of a child abuse if an infant is shaken vigorously, dropped or thrown, or blown directly in the head purposely. Now, the continuous crying of the child or frustration of the parent or the caregiver can be the triggering factors for their abusive behaviour.
This article focuses on the legal perspective of SBS and how it has become one of the most heinous forms of child abuse.
History of SBS
John Caffey, a paediatric radiologist, published a paper in 1946 describing six cases of children with skull fractures and subdural haemorrhage. He believed that trauma was the reason for these combinations of injuries and, therefore, advised physicians to observe similar cases.
In 1956, a person named Virginia Jaspars was imprisoned for 22 years for killing and injuring 15 infants in her care. She admitted that she had shaken an infant, Jennifer Malkan, vigorously which made her head snap back and forth leading to loss of breath and other injuries.
It was in 1962 when abusive head trauma was first brought to public attention by one C Henry Kempe, followed by the findings of Norman Guthkelch, a British Paediatric neurosurgeon. He called shaking, a mechanism that causes intracranial injuries in infants.
Further research revealed that a significant number of head trauma injuries in infants were caused due to SBS resulting in permanent damage and even death in numerous cases.
By 2009, abusive head trauma was the main cause of death and disabilities in infants in the USA. SBS became a persistent issue worldwide with around 20-30 infants per 100000 being subjected to this form of abuse. Further, it is believed that the cases of SBS go highly unreported since it is really difficult to differentiate between an accidental head injury and an abusive head injury. Additionally, the signs of abuse are not explicitly visible, rather, it is through an advanced medical examination, that the injuries are diagnosed. Therefore, it becomes extremely crucial to diagnose the injuries to reveal whether it is through the abusive behaviour of parents or caretaker, that the infant suffered injuries or an accidental injury.
Diagnosing a case of SBS becomes extremely difficult because the history of violent shaking or abuse is not accepted that easily. Cases of SBS are presented as instances of accidental injury. While in some cases, the offenders admit to their shaking of the child, the degree of shaking becomes a question. While some parents or caretakers shake the child to wake it in case of no response, there are others like Jaspars who shake the child vigorously.
Therefore, the cases of SBS are diagnosed by the presence of a triad including Subdural haemorrhage, Retinal haemorrhage, and Hypoxic-ischemic Encephalopathy. It is believed that this triad could occur only in severe trauma cases such as a vehicle accident, falling from a multi-storey building, and vigorous shaking.
The triad is as follows:
Subdural haemorrhage is the collection of blood underneath dura mater, a thick and fibrous layer that covers the brain. It occurs when the veins connecting the brain to the dura mater tears. Falling from a height or injury caused by acceleration/deceleration can lead to Subdural Haemorrhage. It can be diagnosed by a CT scan or by an autopsy. Violent shaking causes acceleration/deceleration, thus, leading to Subdural Haemorrhage.
The retina is a layer of neural cells located at the back of the eyeball. Retinal Haemorrhage can occur in two ways in cases of SBS. First, due to the increased venous pressure in the retina due to Subdural Haemorrhage and secondly, due to tearing of the retina caused by traction of its vitreous as a result of vigorous shaking.
Encephalopathy is a set of neurological symptoms such as unconsciousness, seizures, irritation, and lethargy observed in surviving infants after the abuse. In the case of SBS, the infant suffers from immediate unconsciousness after the injury. Encephalopathy is generally correlated with Diffuse Axonal Injury, a traumatic brain injury caused due to rapid acceleration/deceleration, as in vigorous shaking.
The legal perspective of SBS
Various reports have pointed out major flaws in the medical concept of SBS regarding the presence of triad. The reports suggested that in cases of alleged SBS with Subdural Haemorrhage leading to Retinal Haemorrhage, it has been ‘purportedly proved’ that the infant has been shaken vigorously with intent. Further, questions have been raised about the validity of considering the presence of triad as evidence of SBS, since no authorised study has held the same and it is just a commonly held opinion. Therefore, SBS has always been in question because of the risk of misdiagnosing an infant with Subdural Haemorrhage due to other reasons for SBS. Further, questions have been raised for correlating shaking and injuries on the ground that focusing on shaking and trauma overlooks the other natural causes of the injuries which leads to the wrongful punishment of innocent parents or caretakers. Moreover, the victim, that is the child, is an infant or normally under 2 years of age which means that he/she cannot give any statement and there is hardly any witness, which further complicates the proceedings. Therefore, it becomes extremely difficult to determine the exact circumstances which led to the injuries, and to balance the medical evidence and the narratives of the parent or the caretaker.
Cavazos v. Smith
In the case of Cavazos v. Smith, the US Supreme Court had to decide on the same question whether the sudden death of an infant due to a head injury was a case of SBS or not. The infant, who showed external signs of trauma, was diagnosed and concluded to be dead because of SBS. His grandmother, Smith, admitted that she gave him “a little shake, a jostle” to wake him up when he was not responding to her touch. The prosecution focused upon the haemorrhage, bruise, and abrasion that were found on the infant’s lower side of his head’s back. Further, the prosecution contended that the shaking of the infant was so vigorous that the brain got damaged in the vital parts leading to the death of the child.
On the other hand, the defendant argued that the infant has died because of brain trauma caused due to other reasons and not SBS as the autopsy report does not reveal retinal haemorrhage which is present in 75-80% of the SBS cases.
Smith was charged guilty and the verdict was upheld by the California Court of Appeal. However, the decision was reversed by the Ninth Circuit Court stating that, though, tearing of the brainstem was the cause of the death, the report does not prove that the tearing took place due to violent shaking. The Supreme Court of Appeal rejected the decision by a 6:3 majority and observed that the evidence of Subdural Haemorrhage and blood clot between the brain’s hemispheres are pointing towards the presence of SBS.
However, the dissenting judges questioned the medical evidence on the basis that it was purely based on the doctor’s submission that the presence of Subdural Haemorrhage, without any signs of external trauma, is necessarily caused by violent shaking. There have been conflicting medical views regarding the causes, evidence, and other matters relating to SBS. Eventually, Smith was granted clemency after spending almost 10 years in prison.
R v. Harris
Further, in 2005, in R v. Harris, the same question was placed before the Court of Appeal in London, when 4 parents appealed before the court to reconsider their conviction for culpable homicide committed against their children. The appeal was based on the findings of one neuropathologist, Dr Jennian Geddes, who challenged the supposed infallibility of the triad of injuries and relied on the opinion that there was one unified cause for the triad of injuries, but it was not necessarily trauma.
However, the doctor, during cross-examination, stated that the study was not meant to be proved in the court of law as it might not be correct. The court dismissed the hypothesis and considered another question with regard to the minimum force required for producing the triad in SBS. The answer was not known and it was believed that it cannot be known with complete certainty.
The court of law dismissed two of the appeals and upheld the rest of the two appeals. Further, the court made certain observations regarding the expert evidence since it was only on that basis that the cases of alleged SBS were decided:
- The evidence must not be influenced by any of the parties of the suit and must be an independent product of the expert.
- The expert witnesses, while providing opinions for the assistance of the court, should keep in mind that the opinions are within the area of their expertise and unbiased.
- The evidence must specifically mention the facts and assumptions based on which the opinion is formed.
- If the opinions of the expert are provisional or experimental, then the same must be declared before the court of law.
- If the information or research is incomplete or not sufficient to determine a case, then it should also be declared.
- If any material evidence or opinion of other experts changes the mind of the witness expert, then it should be communicated to the court and the parties without any further delay.
While the presence of triad remains as one of the major pieces of evidence of SBS, the same is not enough to diagnose abuse. However, there have been instances where the court has convicted the accused of child abuse based on injuries suffered by the victims.
In an unreported case of SA Willers & AM Willers, a couple was convicted for abusing 4 of their 5 children, even when there were no witnesses of the alleged abuse. The children suffered from injuries like bone fractures, bruises etc. It was alleged that the 1st and the 4th child, who have an extradural haematoma, have been shaken vigorously. However, due to the lack of witnesses, no clarity was drawn as to how the children suffered injuries. Still, the court held the couple guilty of child abuse because of the injuries suffered by the victims which appeared to be non-accidental.
In another case of S v. Campos (2002), a parent shook her baby vigorously when she found that her baby was not breathing. The baby died of Subdural Haemorrhage, rib fracture, dislocation of spine, and bleeding of the hilum of the left lung. The medical expert stated that the haemorrhage might have been caused due to the shaking of the child leading to her death as well. But the baby suffered from such injuries that any one of them could have led to her death. Therefore, the court observed that the parent should have been careful while handling the baby and it’s because of the vigorous shaking, that infant suffered from such injuries. Thus, the parent was held guilty for the death of her infant.
The prosecution for SBS is based completely on the medical report and expert witnesses. While the presence of triad is considered as a result of trauma caused to a child through abuse, various studies have pointed out that it can also be caused due to other reasons such as an accident. Therefore, the prosecution of SBS requires great care and study about the past of the parents or caretakers in order to be clear about the possibility of abuse.
In cases of alleged child abuse or SBS, the legal professionals need to collect all the relevant information along with the medical reports to ensure that an innocent parent or caretaker is not held guilty. Information about the parents, their mental health, education level, welfare status, income status, history of spousal abuse or domestic violence must be taken into consideration as these factors can help in determining the possibility of child abuse.
A major step that is required on the part of the government is that of spreading awareness among the general public about the danger of shaking an infant. Now at this step, it becomes extremely crucial to differentiate between a ‘good shaking’ and ‘medical shaking’ that can lead to severe head injuries. Many people resort to shaking for the sole purpose of stopping an infant from crying without any intention of causing harm. And since shaking does not show any external signs of abuse, many people believe that it is right to do so.
Therefore, it is essential to create awareness among the parents about the danger of shaking which could lead to severe disabilities among their children. Further, campaigns should be organised where parents should be taught soothing techniques that they can use instead of shaking to console a crying infant.
Shaken Baby Syndrome is an issue that cannot be ignored altogether. While, relying upon the sole evidence of the presence of triad for charging parents or caretakers guilty of abuse can result in wrongful convictions, the same cannot be overlooked as well. Thus, there is a dire need for the scientific stakeholders to develop certain guidelines which can contribute to the solution of the problem and ensure that the cases of child abuse by violent shaking do not go unpunished while the innocents are not convicted at the same time.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: