Is the Law Dismembering Child Abuse Prosecution?

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Child abuse manifests in various forms. One is the “Shaken Baby,” where rapid head shaking allegedly causes neurological injury and death. Until recently, a constellation of bodily injuries was considered adequate evidence to convict an indicted abuser. No longer. Recent cases have held that “Shaken Baby Syndrome” is not a valid diagnosis. One court just held the diagnosis should be a legal determination – not a medical one, rejecting all medical testimony and exonerating alleged abusers.

The concern of over-aggressive prosecution of alleged abusers is not new, although it is gaining prominence. Various medical conditions may mimic the appearance of an abused child, leading to erroneous conclusions. Indeed, there are wrongful convictions of caring parents of children with hemophilia or osteogenesis imperfecta [1]. Not only is this unjust, but family separation wrongfully deprives children of the care and concern of a loving parent who languishes in jail – or is even sentenced to death.

Current Statutes (NY) – State of Abuse

On the other hand, child abuse is a serious and prevalent situation. According to the Children’s Advocacy Center, over three million child abuse cases are reported annually. The National Children’s Alliance indicates that among 600,000 abused children there were 1820 deaths, and in 77% of cases the abuser was a parent. It’s not surprising that 48 states mandate reporting of suspected abuse. [2]

In NY, failing to report child abuse is criminalized, and good faith reporting is protected from prosecution, even if erroneous.  While these provisions may jeopardize the security of a suspected abuser, they protect the child. But some bioethicists claim the system is biased, inappropriately targeting Black families, and that mandatory reporting should be abolished.

“ Bias is widespread in … these cases. Black children are reported at about twice the rate of white children and their cases are more likely to be investigated, confirmed, and brought to court. Black children are more likely to be removed from their families and … for longer periods…. [C]ases involving Black children are less likely to be substantiated,…”

-  Anne Zimmerman, Editor-in-Chief at Voices in Bioethics

Shaken Baby Syndrome (SBS)

Other opponents of the current system are more focused, targeting their attacks on SBS, now also called Abusive Head Trauma (AHT).

AHT is “the most common cause of death and long-term disability in infants and young children who are victims of child abuse.”

According to the American Association of Neurological Surgeons (AANS), it is estimated that there are between 600 and 1400 cases of AHT annually in the U.S. a year. Ten to thirty percent do not survive.

Often, there are no external indications of injury detected with SBS. However, according to the AANS, physical examination demonstrates multiple signs and findings, including:

  • “Subdural hematoma… a collection of blood between the surface of the brain and the … the tough, fibrous outer membrane surrounding the brain. This occurs when the veins that bridge from the brain to the dura are stretched beyond their elasticity, causing tears and bleeding.
  • Subarachnoid hemorrhage… bleeding between the arachnoid (web-like membrane surrounding the brain filled with spinal fluid) and the brain.
  • Direct trauma to the brain substance itself, caused when the brain strikes the inner surfaces of the skull.
  • Shearing off or breakage of nerve cell branches … caused by violent motion to the brain.”

Other related harms include:

  • Retinal hemorrhages ranging from a few scattered hemorrhages to extensive hemorrhages involving multiple layers of the retina.
  • Skull fractures resulting from impact when the baby is thrown against a hard or soft surface.
  • Lack of oxygen if the child stops breathing during shaking or due to the release of chemicals from injured nerve cells.

These findings have not stopped several law professors and medical professionals from arguing that there is no association between these injuries and shaking a baby, with or without the impact of the child’s brain with a solid object.

“You can’t necessarily prove [Shaken Baby Syndrome] one way or another — sort of like politics or religion, “Neither side can point to compelling evidence and say, ‘We’re right and the other side is wrong.’ So instead, it goes to trial.”

- Forensic pathologist Gregory G. Davis, chairman of the National Association of Medical Examiners

A compelling law review by legal academics and physicians reports the difficulties in proving that shaking causes the injuries documenting SBS, mainly predicated on a lack of reliable experimental evidence. [3]  At least some courts have been convinced.

Shaken Baby Syndrome and the Courts

In the U.S., 16 convictions for Shaken Baby Syndrome have been reversed since 2001. Notwithstanding, some 1,500 to 1,600 cases of SBS are successfully prosecuted each year. Five parents are currently believed to be on death row, awaiting execution for shaking their babies to death.

Yet, even as California has legislated the diagnosis of SBS into law as causally affecting harm [4], last month, a  New Jersey  Appellate Judge, Greta Gordon Brown, tossed the cases against two defendants, excluding the medical testimony supporting the prosecution’s case. The facts are chilling.

One child suffered three episodes of concern while under the care of his father and was brought to the ER twice, suffering a constellation of signs and symptoms consistent with Shaken Baby Syndrome. On examination, the child was found to have old and new brain bleeds, intraretinal hemorrhage (bleeding in multiple layers of the eyes), and a hole in the right eye. After other possible causes were ruled out, and as no other medical diagnosis could explain the child’s condition, he was diagnosed with Shaken Baby Syndrome.  The history of the second child was remarkably similar, as were the physical findings.

The examining physician identified several specific objective signs associated with SBS, including subdural hematoma, severe retinal hemorrhage, and encephalopathy. This “triad,” in the absence of other pathology, provided the final diagnosis, according to Dr. Gladibel Medina, a child abuse pediatrician charged with investigating the matter and examining the child.

The shaking created forces of acceleration and deceleration,

“caused the jelly-like substance within the eye- the vitreous – to pull against the retina causing rupture of the retinal vessels.” - Dr. Gladibel Medina

The defense provided two medical experts and a biomedical engineer who disputed Dr. Medina and claimed no reliable foundation existed establishing that shaking caused the injuries. Further, they claim SBS does not exist as a valid medical diagnosis. The court accepted their testimony and rejected Dr. Medina’s outright. In essence, the court ruled that there is no basis on which the state’s medical expert could testify that the medical findings (head and eye damage) were caused by shaking.

Legally, what is sound science?

The ruling regarding the battling experts turns on the legal determination of what constitutes sound science. The judge ruled that according to her interpretation of the governing Frye rule, requiring the consensus of the medical community to agree to a proposition before it can be considered evidence, Dr. Medina’s testimony was tantamount to “junk science” and therefore was excluded.

Sadly, the judge misunderstands the meaning of “consensus” testimony as it was derived from the Frye case and later expounded on and expanded in Daubert.  The existence of a dispute within the medical community does not invalidate previously well-accepted doctrine. The Daubert and Frye standards were created to provide a rubric to determine when novel science gains enough credibility to be considered by the court, not to support the demolition of entrenched medical doctrine.

According to Judge Gooden Brown, as long as there is dissension in the medical community, no consensus can exist, a view that is incompatible with the current practice in the established medical community – and at odds with Daubert. No less than 14 international medical associations have provided consensus statements supporting the SBS diagnosis, confirming that it can be caused by shaking a child. But with several doctors and biomechanical engineers (the relevancy of whose expertise might be entirely contested) opposed to the SBS diagnosis, determining that no reliable evidence exists to support it, Judge Gooden Brown ruled that those 14 consensus medical opinions attesting to the validity of SBS will not be countenanced.

Whether the case will be an outlier or set a trend remains to be seen. However, claims that a diagnosis is a legal finding, not a medical one, a prime driver of the decision, is now being leveled against all types of child abuse.


Recently, Bioethicist Zimmerman attacked the entire criminal child abuse system:  

“[C]hild abuse is not a medical diagnosis. It is a legal finding. Medical diagnoses include injuries and bruises, which can be the result of abuse or other causes. Child abuse pediatricians’ training is focused on the legal finding. These doctors often become so suspicious of abuse that they ignore the many other possible explanations for injuries and bruises, including accidents and certain diseases.  Accusations of medical neglect and abuse can interfere with parents’ ability to seek multiple opinions on the causes of their children’s complex medical problems.

The practice of making a diagnosis based on a history consistent with physical presentation and employing a differential diagnosis to rule out mimicking diseases is condemned by Zimmerman and others.  Sadly, these detractors of child protection do not seem conversant with other areas of medicine where this practice is widely accepted, such as occupational medicine. Balancing rights (of alleged perpetrator and potentially abused child) is always fraught with difficulty. But the default position should favor the children.


[1] Osteogenesis imperfecta is a genetic disease “[Where] the bones become so fragile and … break easily with minimal trauma,… [is] coined as “imperfect bone formation.” It also leads to bruises …. Sometimes, fractures may result from the routine handling of parents. It can be misleading since fractures are considered to be the second most common sign of child abuse ….”

[2] Laws instituted in 1975 mandated reporting. Not until 2018 were comprehensive laws passed to protect children, the first in New York.

[3] It would be unethical to experimentally subject the hypothesis of adequate force during shaking/acceleration causing injury.

[4]”The Legislature finds …:(a) Shaken baby syndrome is a medically serious, sometimes fatal, matter affecting newborns and very young children.  Shaking an infant or child in anger is particularly dangerous.” Health And Safety Code Section 24520-24522