Recent Media Stories Shine Spotlight on Important Debate: Is “Shaken Baby Syndrome” a Valid Paradigm By Which to Conclude a Child Has Been Physically Abused?

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On March 26, Prof. Frank Vandervort issued a post on the NACC listserve entitled “Abusive Head Trauma / Shaken Baby Syndrome” responding to recent media stories investigating the use of “shaken baby syndrome” in the courtroom, including a series published by The Washington Post and a story run on PBS NewsHour. In this posting, Prof. Vandervort accused the Post and PBS of “disseminat[ing] very slanted and misleading information.” He then criticized the ABA’s Section of Litigation’s Children’s Rights Litigation Committee for publishing a piece written by Kate Judson, an attorney who, through the Wisconsin Innocence Project, serves as the national coordinator of medical and legal work exonerating persons who have been wrongly accused of “shaken baby syndrome” (or “abusive head trauma,” as SBS has been relabeled). We appreciate this opportunity to respond to Prof. Vandervort’s criticisms through a guest post on the NACC Child Law Blog!

  • Diane L. Redleaf
  • Melissa L. Staas

Diane L. Redleaf / Melissa L. Stass

Simply put, there is no basis to call into question the journalistic integrity of the media sources referenced by Prof. Vandervort, nor is it fair game to issue ad hominem attacks on our colleagues in the innocence movement whose excellent work has resulted in numerous recent court decisions that vindicate the wrongly-accused. The Washington Post and PBS are obligated to follow their own journalistic guidelines for objectivity in reporting and there is no reason to suspect that they failed to do so in these instances. Indeed, the Washington Post team conferred with many physicians and attorneys who have supported prosecutions based on an SBS/AHT determination and the PBS NewsHour feature included interview footage with Dr. Lori Frasier. The Post article in particular highlighted cases in which the claims of wrongful accusations are supported by federal and state court findings, including ones determining that the factual basis for years-old convictions was lacking. There simply is no basis to declare, as Professor Vandervort does, that the reporting was biased or the result of “plants.” In light of the burgeoning national debate about using SBS/AHT to reach legal determinations of child abuse, the ABA’s Children’s Rights Litigation Committee’s decision to publish Ms. Judson’s piece is exceedingly timely. It should also be noted that the Committee has communicated that plans for the summer issue include an article from a prosecutor’s perspective as well as an article focusing on the particular issues that arise when SBS/AHT is alleged in the context of child welfare proceedings.

Contrary to Prof. Vandervort’s claims, it is not “misleading” to recognize that there is debate within the legal and medical fields about whether a valid determination of child abuse can be made based on a cluster of certain medical findings with no external signs of abuse and no other direct evidence of abuse. Indeed, when courts of law are making precedential rulings that question prior dogmas about SBS/AHT, it is only fitting that conflicting views on the merits of these rulings be debated. It would be a disservice to the children the NACC’s membership represents – a constituency that includes minors who themselves have been charged with crimes based on an AHT/SBS determination and also children who are separated from loving parents based on a potentially invalid accusation – to stick our heads in the sand and pretend that no debate exists. The ABA’s Children’s Rights Litigation Committee should be applauded for inviting its readership and membership to carefully examine the questions the debate is cultivating, engage in the dialogue, apply critical thinking, and ultimately reach their own conclusions.

To be clear, the debate as it has been framed by the Post, PBS, and the ABA Children’s Rights Litigation article is not over whether shaking a baby is harmful. There appears to be virtual unanimity as to the appropriateness of public health awareness campaigns warning against the dangers of shaking by parents and caretakers. It is never acceptable to violently shake a baby. There is no debate on that point.

Rather, the debate is over whether a valid and reliable legal conclusion that a child has been violently assaulted can be inferred solely from the presence of certain medical findings. Just because violent shaking is dangerous and can result in injury does not mean that the opposite is true: that when you find an injury, you know that violent shaking is the cause. This logical fallacy has led to wrongful convictions (of both adults and minors), misplaced allegations, and tragically misguided terminations of parental rights based on the presence of a set of medical findings alone. In far too many of these cases, alternative non-abuse explanations accounting for the same medical findings were never considered in a rush to judgment.

Even prominent experts who insist that a conclusion of abuse can be drawn based only on a set of medical findings – including Dr. Frasier who was featured in the PBS NewsHour piece – acknowledge that there are no standardized criteria for diagnosing SBS/AHT and that other conditions, accidents, and diseases can cause similar findings. While some may disagree about the frequency of alternative causes, or whether an alternative cause is likely in a particular case, the assertion that findings often associated with SBS/AHT can have other causes is not controversial.

As members of the NACC, we should not be afraid of this debate. We at The Family Defense Center are looking forward to continued substantive discussion on these important issues while still recognizing the counter-productivity of approaches that deny the existence of any debate or controversy, attack critics (including those who are our professional colleagues), smear media outlets that investigate these issues, and/or mischaracterize the argument by claiming that critics of the current medico-legal SBS/AHT paradigm fail to recognize the dangers of shaking an infant. The NACC is a uniquely-situated platform through which this discourse can and should occur!

Diane L. Redleaf, Executive Director
Melissa L. Staas, Staff Attorney
The Family Defense Center
Chicago, IL


Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

Diane L. Redleaf / Melissa L. Staas

Diane L. Redleaf is the Executive Director of the Family Defense Center. A child and family advocate since she graduated from Stanford Law School in 1979, Ms. Redleaf has brought more than a dozen major systemic reform cases on behalf of families, spearheaded major legislative reforms in Illinois, and represented parents in hundreds of juvenile court and administrative proceedings.

Melissa L. Staas received her J.D., magna cum laude, from Loyola University Chicago School of Law in May, 2007, where she was the Editor-in-Chief of the Children’s Legal Rights Journal. Through her work with the Family Defense Center, Melissa has represented hundreds of families involved in the child welfare system and has gained expertise in cases involving allegations of domestic violence and cases involving complicated medical issues.

3 Comments
  1. As someone who participated in the PBS Newshour. I was personally disappointed at the portrayal of my involvement. I tried to project a balanced approach to the medical assessment of AHT is way beyond the “triad”. The “Triad” defense has become a straw man in the courts that is easily “knocked down” by individuals without sufficient knowledge or experience to recognize that these symptoms have variability:

    The type of retinal hemorrhages, are they diffuse or isolated, the distribution, location and action that the subdural hematoma plays in regards to the brain and it’s covering, and encephalopathy could mean a brief period of changes in consciousness to seizures, to coma and death from severe primary brain injury. The side of mainstream medical practice was clearly not well presented. Therefore there was significant bias and poor journalistic approach to these cases. The medicine, the science, and the literature was poorly represented.

  2. Dr. Frazier, do you agree with the above commentary that the current debate is necessary? And if it is necessary but not being done in a fair and thorough way, where would one go to find objective and clear information?

  3. As with other syndromes (most notably the former Munchhausen by Proxy Sydrome (now Factitious Disorder)it is most difficult to prove standing alone without significant supporting contextual evidence. Really, what these syndromes come down to, to my thinking, is a Res Ipsa Loquitor Claim, though not in tort, that the damages caused to the child could not have arisen by themself and that a caretaker must have been the causal agent. Since dependency based claims are status claims, this is easier when one is obtaining an adjudication in dependency court, since it is necessary only to show by clear and cogent evidence that any parent, guardian or caretaker was a causal agent.Obtaining a criminal conviction would seem next to impossible because so much competent evidence must be adduced to establish the precise causal agent, let alone establishing that the causal agent’s actions actually were the sole cause of the injury.In twenty years of practice in juvenile court, I have tried maybe two of these cases and was successful on both occasions. However, the success wasn’t because of great medical testimony standing alone but broad pleading and abundant collateral wtinesses and exhibits which put enough contextual evidence out there to allow the factfinder to see the whole picture of the child’s dependency, as well as alternative pleading, alleging abuse as well as neglect through inappropriate discipline.

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