Shaken Baby: Convicted, But Beyond a Reasonable Doubt?By Bruce Gross, PhD, JD, MBA
According to the United Nations, 80% of children who die from violence are under age 6, and of those, 40% are infants (Child Welfare Information Gateway [CWIG], 2006; Pinheiro, 2006). The most common cause of violent death for this age group is head injury, followed by blunt force trauma to the child's body. Although there are many possible sources of traumatic head injury, in 1971 it was suggested that shaking could cause subdural hematomas (and associated cerebral edema), one of the most common types of intracranial injuries seen in deceased infants (Guthkelch, 1971). It was purported that shaking was the mechanism responsible for shearing or tearing the cortical bridging or connecting veins in the brain, which, in turn, caused hematomas.
One year later, in 1972, pediatric radiologist John Caffey coined the term "whiplash shaken baby syndrome" to describe a cluster of physical symptoms found in severely traumatized infants. These signs or symptoms included brain injury (i.e., subdural and/or subarachnoid hemorrhages), retinal hemorrhages, and little to no external evidence of head trauma (Caffey, 1972a). Caffey concluded that this type of traumatic intracranial bleeding, similar to that seen in "whiplash" victims, was inflicted by shaking (Caffey, 1972a, 1972b, 1974). Eventually this cluster, or triad, of clinical findings in infants and children came to be known as either "shaken baby triad" or "shaken baby syndrome" (SBS). When additional symptoms consistent with the infant's head striking a solid or semi-solid surface (such as cranial fractures) were present, the condition was referred to as "shaken-impact" or "shaken-slam."
Characteristics of the Crime
Shaken baby syndrome is thought to be caused by an adult grasping an infant by the torso or arms (pressed against the sides) and shaking the child back and forth in quick, jerky motions (British Broadcasting Corporation [BBC], 2008; Emerson, Pieramici, Stoessel, Berreen, & Gariano, 2001; Caffey, 1974). In the process, some (but not all) shaking victims might be thrown onto a bed, a couch, or the floor. Infant brains are especially vulnerable to this type of injury as their incomplete development results in a larger space between the brain and the skull in which greater acceleration can be achieved. Despite the brain's relatively small size, an infant's head represents one-fourth to one-third of his or her body weight with high water content. Supported by a weak neck, when the infant is shaken, the head essentially "flops" or "flaps" against the chest and back. This action produces closed head trauma, which is the characteristic and universal symptom of SBS.
In the most severe cases of shaking, the victim will either instantly or rapidly fall into unconsciousness or a coma, followed by death. In less severe cases, the victim may manifest a number of physical and behavioral signs of head trauma. Irritability is one of the most common symptoms associated with less severe shaking, especially when seen concomitantly with drowsiness and/or vomiting (that may be projectile) without diarrhea. The eyes of shaking victims may appear "glassy" or may show no or impaired tracking. Either or both pupils may be fixed or show evidence of blood pooling. In virtually all cases of mild to moderate shaking there is some degree of lethargy.
Victims of shaking may show reduced or no appetite and may have difficulty with sucking or swallowing which, in turn, may result in choking. The skin tone of some victims may appear pale or bluish, breathing may be irregular, and the child may be unable to smile or vocalize. The infant or child may show decreased muscle tone, swelling of the head, an inability to lift or turn the head, or bizarre positioning of the head in relation to the body. As deterioration advances, the child may suffer from altered consciousness, convulsions, or seizures.
In addition to the above, there are numerous indicators of shaking that may not be readily apparent. These include abnormally low blood pressure, mild to moderate anemia, abdominal and/or chest injuries, soft tissue swelling (resulting from underlying fractures), and a swollen or tense fontanel (resulting from cerebral edema). In addition to possible impact-induced skull fractures, the victim may suffer from a number of other fractured bones, including the collarbone, any of the long bones, and, most telling, the back of the ribs (Minns & Busuttil, 2004; Glass, Norton, Mitre, & Kang, 2002).
Despite the number of signs and symptoms of SBS, it has been suggested that in approximately one-third of those infants seen by private physicians or in emergency rooms, abuse-induced head trauma is completely missed or misdiagnosed upon first presentation (Kemp, Stoodley, Cobley, Coles, & Kemp, 2003; Jenny, Hymel, Ritzen, Reinert, & Hay, 1999; Ewing-Cobbs et al., 1998; Alexander, Crabbe, Sato, Smith, & Bennett, 1990). The difficulty in accurately diagnosing SBS may be attributed to several factors. In addition to the fact that there may be no external evidence of injury, the symptoms of SBS and their onset vary from case to case, with no accepted explanation for this variety. Even with severe shaking, while the symptoms may appear immediately, they may not reach their peak until approximately 6 hours later. With sublethal shaking, symptoms such as lethargy, irritability, poor feeding or appetite, and vomiting may wax and wane over the course of days or weeks.
Many of the more readily identified but nonspecific signs and symptoms of shaking may be attributed to and, in fact, caused by a number of other conditions. Frequently, SBS is misdiagnosed as a persistent viral infection (including meningitis) or flu, dehydration, vitamin C or K deficiency, feeding dysfunction, colic, failure-to-thrive, or sudden-infant-death syndrome (Jenny et al., 1999). When victims are placed on life support before a thorough evaluation can be completed, at autopsy the symptoms caused by SBS may be attributed to the effects of artificial respiration on the brain. Obtaining an accurate history in the process of diagnosing SBS is difficult at best, especially as there are generally no witnesses to shaking. If the perpetrator takes the child for medical attention, for a number of reasons he or she may be unwilling or unlikely to provide a truthful description of what preceded the onset of symptoms, further complicating accurate diagnosis.
The Context of SBS
In those cases in which victims of shaking do present with external trauma, the injuries most typically include bruising to the face, arms, stomach, and/ or back, and are highly indicative of other forms of physical abuse. Shaken baby syndrome seldom occurs in isolation and has been long known to occur in the context of repeated physical abuse, with evidence of prior abuse and shaking often found upon examination (Ewing-Cobbs et al., 1998; Alexander et al., 1990; Caffey, 1972a, 1972b). Shaking tends to escalate over time, becoming increasingly violent, prolonged, and frequent. It has been estimated that in approximately 33-40% of all cases of SBS, there is evidence of previous head trauma due to shaking, such as old or resolving intracranial hemorrhages (Alexander et al.). Among physically abused infants and children, head trauma is not only the leading cause of death, but also of long-term disability (Pinheiro, 2006; Reece & Sege, 2000; Duhaime et al., 1992; Billmire & Myers, 1985). In turn, the most common cause of head trauma among abused infants is believed to be shaking.
Between 50-80% of the murders of children aged 10 and under are perpetrated by family members (CWIG, 2006; Pinheiro, 2006). Consistent with this, early researchers noted that SBS was typically inflicted by exceptionally stressed parents or caretakers (Ewing-Cobbs et al., 1998; Alexander et al., 1990; Caffey, 1972a, 1972b). Fathers or fatherfigures, most in their early 20s with low socio-economic status, are the most frequent perpetrators of shaken baby syndrome, responsible for anywhere between 65-90% of all cases (Pinheiro; Children's Trust Fund [CTF], 2004). A female caretaker or babysitter is the next most common offender, followed by the victim's mother.
In general, infant shaking is associated with the parent or caretaker suffering from biological, social, environmental, and/or financial stress, which increases the risk of impulsive and violent behavior. Adults with past or present problems with substance abuse or domestic violence may be at even greater risk of perpetrating this type of child abuse. The most frequent reason given by offenders for shaking an infant is the frustration that results from caring for an inconsolably crying or incessantly fussy child (Barr, 2007; Pinheiro, 2006; Caffey, 1972). However, shaking may also be triggered by the infant's excessive coughing or toileting problems, as well as by caretaker sleep deprivation or jealousy of the child by the abusing adult.
Although SBS has been reported in cases of children up to age 5, it is most commonly seen in children under the age of 2 years (Keenan et al., 2003; United States Advisory Board on Child Abuse and Neglect [USABCAN], 1995). In the majority of cases, the infant is between 3-8 months. For a number of reasons, including mis- or under-diagnosis, there are no reliable figures regarding the incidence of SBS (Wirtz & Trent, 2008). One difficulty in gathering reliable statistics is the notable variation in the symptom constellation used to define SBS between hospitals. Despite this, the National Center on Shaken Baby Syndrome has reported there are between 600 and 1,400 cases of SBS seen in U.S. hospitals every year (For more information, see: www.dontshake.org/sbs.) Using research conducted by the British Broadcasting Corporation (BBC), the figure rises to between 1,200 and 1,600 in the United States per year (BBC, 2008).
As identified in the early 1970s, SBS is caused by violent shaking of an infant or young child, causing the brain to rebound against the skull. It is the force of this rebounding that results in the characteristic tearing, bruising, bleeding, and swelling of the brain. Although significant symptoms may develop immediately, while still in the care of the perpetrator, the offender may not seek immediate medical intervention, convincing him or herself the child is "sleeping" (when actually unconscious or comatose) or "needing a nap" (when lethargic and irritable) or suffering from a minor ailment (when vomiting). Many of the clinical signs of SBS are sufficiently problematic to prompt a parent or caretaker to seek medical attention. Unfortunately, that may not occur until days (or even weeks) after the precipitating trauma.
By the mid-1970s, computed tomography (CT) was being used in the diagnosis of SBS, and by the mid-1980s, magnetic resonance imaging (MRI) was added adjunctively in order to better refine the diagnosis (Alexander, Schor & Smith, 1986). Although MRI is better able to detect certain brain lesions, it cannot be used if the child is on life support (Sato et al., 1989). When combined, CT and MRI are extremely useful for determining the age of identified injuries, as well as any history of repeated trauma or victimization. Imaging should be repeated in 1-2 weeks as it takes approximately 7-10 days for the healing process to become radiologically visible in new fractures (American Academy of Pediatrics, Section on Radiology [AAPSR], 2000).
Since the early 1970s, after Caffey identified "whiplash shaken baby syndrome," SBS has been diagnosed based on the co-occurrence of subdural hematomas, retinal hemorrhages, and the absence of external injury consistent with a trauma sufficient to induce the first two symptoms (such as a motor vehicle accident or a fall from an appreciable height). However, the diagnosis has been made based solely on the presence of subarachnoid hemorrhages with associated cerebral edema (American Academy of Pediatrics, Committee on Child Abuse and Neglect [AAPCCAN], 2001). Shaking-induced intracranial bleeding is typically most prominent in the inter-hemispheric fissure, although it can be found virtually anywhere in the brain. When retinal hemorrhages are present, they may be easily missed. Accurate diagnosis requires dilation of the pupils, the use of specialized equipment, and examination by a pediatric ophthalmologist (Levin, 1990). Retinal hemorrhages may involve multiple layers of the retina and vary widely between cases in terms of nature, size, severity, number, and location. Those seen in infants who were known to have been shaken resolved anywhere from 1 week to several months, and in some persisted for years (Emerson et al., 2001).
In diagnosing SBS, the infant or toddler's history must be absent any underlying condition(s) known to produce subdural hematomas and retinal hemorrhages. Conditions or illnesses that must be ruled out include hydrocephalus, coagulopathies, or metabolic, inflammatory, thrombotic, or seizure disorders, amongst others (Barnes, 2002; Rutty, Smith & Malia, 1999). Not only do these conditions result in the symptoms characteristic of SBS, they also increase the child's vulnerability to damage from whiplash-type motion. Similarly, antibiotics, Tylenol, and vaccines have been implicated in infant vulnerability to the effects of shaking.
Assumptions Surrounding the Diagnosing of SBS
Despite how straightforward the diagnosis appears to be, there is a great deal of controversy surrounding the triad of symptoms that are considered indicative of SBS. One area of controversy revolves around the nature and course of subdural hematomas, which are believed to be caused by either a disease process or trauma. When an underlying disease has been ruled out, the diagnostician is left with trauma as the causal factor. Yet, minor brain hemorrhages have been found on the MRIs of 26% of "normal" babies, especially in those delivered vaginally (Looney et al., 2007).
Debate also exists as to whether all subdural hematomas are immediately symptomatic and resultant in morphological change. It has been shown that relatively mild structural damage can result in comparatively immediate death, while infants with major damage can survive indefinitely (Geddes, Hackshaw, Vowles, Nickols, & Whitwell, 2001; Geddes, Vowles, et al., 2001). Furthermore, shaking victims have shown no evidence of cognitive impairment for varying lengths of time before ultimately succumbing to their injuries (Denton & Mileusnic, 2003).
Another area of controversy surrounds retinal hemorrhages, which are typically considered the product of non-accidental trauma and pathognomonic of SBS, especially when seen in conjunction with perimacular retinal folds (Emerson et al., 2001; Office of Juvenile Justice and Delinquency Prevention [OJJDP], 1996). Yet, a review of the objective scientific research conducted between 1966 and 2003 does not support this conclusion (Lantz, Sinal, Stanton, & Weaver, 2004). With few exceptions, the existing research is methodologically flawed and, as a whole, conflicting. While retinal hemorrhages may eventually be proven to be diagnostic of SBS, to date, there is insufficient evidence to support unquestioning acceptance of this claim. There is no agreement as to what presentation of retinal hemorrhages (in terms of number, size, location, etc.) points unequivocally to SBS.
Bleeding in the eye is more common than thought and not always non-accidental (Lantz et al., 2004). Research conducted between 2004 and 2006 on approximately 1,500 corpses found retinal hemorrhages in approximately 1 out of every 6 bodies (BBC, 2008). For example, they have been shown to occur at childbirth, with coagulation disorders; in osteogenesis imperfecta, as a result of near or fatal suffocation, straining, repeated, and forceful sneezing; and very occasionally as a byproduct of resuscitation efforts (Goetting & Sowa, 1990). Approximately 6% of children who were abused, but not by shaking, developed ocular findings, including retinal hemorrhages (Levin, 1990, 1998). Because retinal hemorrhages are not always present in confirmed cases of SBS and because their etiology can be other than trauma, they should perhaps not be considered either necessary or sufficient for the diagnosis of SBS.
Controversy also surrounds the diagnostic significance and certainty of the presence or absence of external injury. The diagnosis of SBS is based on the premise that shaking alone is sufficient to cause subdural hematomas and retinal hemorrhages in healthy infants. In addition, it assumes that the injuries (which, again, vary widely in severity and type, etc.) are caused by violent, intentional trauma. The prevailing notion is that the injuries "characteristic" of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two-story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1-4 feet (Omaya, Goldsmith, & Thibault, 2002; Plunkett, 2001).
It is generally accepted that bouncing an infant or toddler on one's knees, tossing a toddler into the air (and catching them), and rough play will not cause SBS (CTF, 2004). Yet, there is not uniform consensus as to what force is minimally necessary to cause subdural and retinal bleeding from shaking. Although some believe that shaking alone is sufficient to cause the type of injuries seen in SBS, others contend that there must also be impact (BBC, 2008; Bandak, 2005; Plunkett, 2001). According to some, impact on a hard surface is necessary, while others believe a soft-surface impact is sufficient.
Biomechanical research using infant crash test dummies and corpses has cast doubt on several theories associated with SBS (BBC, 2008; Bandak, 2005; Plunkett, 2001). The levels of force and speed necessary to achieve SBS-type trauma by shaking alone would result in significant injury to the cervical spine, which is seldom seen in SBS cases. In addition, biomechanical research has demonstrated that in simulated one-and-a-half month old dummies, the damage caused by aggressive shaking is statistically similar to that caused by a 1-foot fall onto concrete covered by carpet. A fall from 3 feet on the same surface produces a force that is 40 times greater than that produced at 1 foot, and it is far greater than that produced by vigorous shaking by a human. In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms lacks scientific certainty.
The Outcome and Aftermath of Shaking
Anywhere from 15-38% of shaking victims die as a result of their traumatic injury (Bennett, Grenier, & Medaglia, 2008; American Academy of Pediatrics, Committee on Child Abuse and Neglect [AAPCCAN], 2001). Approximately 60% of those infants who were comatose upon arrival at an emergency room died or suffered profound and permanent impairments, such as mental retardation or quadriplegia. Longitudinal research conducted in Canada showed that 10 years after being diagnosed with SBS, 12% of those victimized were in a coma or vegetative state, 60% suffered a moderate or greater degree of permanent disability, and 85% required ongoing and lifelong multidisciplinary care (Bennett, Grenier, & Medaglia).
Those infants and toddlers who survive shaking may be left with chronic changes in feeding or eating patterns, speech and motor impairments, hearing loss or deafness, and vision loss or blindness. In addition, they may suffer from myriad cognitive problems (including learning disabilities and any degree of mental retardation), developmental disabilities (including autism), and any number of self-care and behavioral problems. Possible long-term consequences of SBS also include seizures, cerebral palsy, paralysis, and permanent vegetative state. Only 7% of the subjects in the Canadian study were reported to be "normal" at the end of 10 years.
The extent of impairment suffered by victims of SBS is influenced by several factors. For example, the older the child is at the time of the shaking-induced intracranial injury, the better the outcome. As noted above, those victims who arrive for medical care in a coma have a very poor prognosis, with a high rate of fatality. As with all head injuries, the sooner the child receives medical attention after the shaking, the better the outcome. Unfortunately, there may be significant delay due either to the denial or avoidance of the perpetrator or the misinterpretation of symptoms by the non-offending parent/caretaker.
Not only does SBS describe a constellation of (varying) symptoms but, more importantly, it implies or purports to identify their etiology-that is, non-accidental, criminal behavior. The co-occurrence of subdural hematomas and retinal hemorrhages in a child under the age of 6 years is taken as indicative of child abuse, and a report of such is filed if the injuries were not sustained in an automobile accident or a substantial fall. Based on the belief that symptoms of SBS are non-accidental and have an immediate onset, the adult with the victim at the determined time of onset is considered to be the perpetrator.
Much of the literature connecting the triad of symptoms in SBS with shaking alone consists of case studies in which the alleged perpetrator "admitted" to shaking the given victim (Leestma, 2006). These comparatively limited number of confessions have been used as "proof " that the triad is always and only caused by shaking. Aside from the body of literature surrounding the validity of confessions in the absence of eyewitnesses, a review of the body of research and scientific evidence (from 1966 to 1998) used to support the triadic theory of SBS reveals it is not as reliable as presumed (Donohoe, 2003).
The use of SBS in criminal trials has been successfully challenged, both in the United States and the United Kingdom, although none of these cases are considered binding legal precedent (Gena, 2007; Dyer, 2005). In addition to the term "shaken baby syndrome" being barred on the grounds of possibly prejudicing the jury, SBS used as a causation of death has failed to pass the "Daubert" test.[See: Greenup Circuit Court Case No. 04-CR-205, Commonwealth of Kentucky Plaintiff vs. Order and Opinion re: Daubert Hearing (Christopher A. Davis, Defendant) concerning the issue of Shaken Baby Syndrome.] In its decision, the Court concluded that SBS is a "theory" (not scientific "proof ") founded on "educated guessing" regarding the cause of injury or death. The Court disallowed either side to use SBS unless there is clear evidence of impact.
Given the serious consequences faced by alleged perpetrators in SBS cases, it is clear that more research is needed to resolve the areas of contest surrounding the diagnosis. Until then, as suggested by Minns & Busuttil (2004), the term SBS should perhaps be replaced with "non-accidental head injury," thereby avoiding the implication of causation.
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