The article is troubling because it suggests that many parents and day-care providers may be in prison for a crime they did not commit.
The article is also an uneasy reminder of how we tend to accept mainstream medical opinion as fact without questioning the scientific assumptions underlying it.
As contributing writer and Truman Capote Fellow at Yale Law School Emily Bazelon points out in the article, between 1,200 and 1,400 American children (most less than 12 months old) sustain head injuries that are attributed to abuse each year.
“Usually, there’s not much dispute that these children were abused, because doctors discover other signs of mistreatment — cuts, bruises, burns, fractures — or a history of such injuries,” writes Bazelon.
U.S. law-enforcement authorities estimate that there are about 200 shaken-baby prosecutions each year. “In an estimated 50 percent to 75 percent of them,” says Bazelon, “the only medical evidence of shaken-baby syndrome is the triad of internal symptoms: subdural and retinal hemorrhage [bleeding in the space between the skull and the brain and at the back of the eyes] and brain swelling.”
In the late 1990s, medical professionals decided that if this triad of symptoms was present without other signs that the child had accidentally fallen (say, a bruise or a fracture), then an assumption could be made that the baby had been traumatically shaken — in other words, assaulted. Bazelon interviews several individuals — including Audrey Edmunds, a Wisconsin woman now living in Minnesota — who were sent to prison based on this evidence alone.
But, as Bazelon details in her article, that medical consensus — that only shaken-baby syndrome can explain the occurrence of the three symptoms together — “has begun to come undone”:
A small but growing number of doctors warn that there can be alternate explanations — infections or bleeding disorders, for example — for the triad of symptoms associated with shaken-baby syndrome. Across the country, the group of lawyers that has succeeded in exonerating hundreds of people based on DNA evidence is now mounting 20 to 25 appeals of shaken-baby convictions. “No one wants child abuse,” says Keith Findley, a lawyer for the Wisconsin Innocence Project. “But we should not be prosecuting and convicting people in shaken-baby cases right now, based on the triad of symptoms, without other evidence of abuse. If the medical community can’t agree about all the conflicting data and research, how is a jury supposed to reach a conclusion that’s beyond a reasonable doubt?”
As always, tracing back a mainstream medical “certainty” to its research roots can be illuminating. Bazelon reports that “[m]uch of the science of shaken-baby syndrome dates from the late 1960s, when a neurosurgeon named Ayub Ommaya conducted a brutal animal experiment to figure out how much acceleration it took to cause a head injury. … Ommaya’s experiment involved neither shaking nor infants. Still, two pediatric specialists, John Caffey and A. Norma Guthkelch, each wrote a paper that pointed to the work as evidence that unexplained subdural bleeding in babies could occur without direct impact to the head and with or without a visible neck injury. In the 1980s, the term ‘shaken-baby syndrome’ came into broad use, and a national prevention and awareness campaign was set in motion.”
That campaign, although well meaning, appears to have resulted in wrongful convictions. Audrey Edmunds’ case was overturned, for example, in 2008 by the Wisconsin Court of Appeals, which said that the shifting medical opinion regarding shaken-baby syndrome justified a new trial. Prosecutors dropped the charges against her. By then, though, Edmunds had spent 11 years in prison.
Of course, not all researchers believe the alternative explanations for shaken-baby syndrome — the hypothesis, for example, that children may experience spontaneous re-bleeds in their brains from birth injuries experienced weeks or months earlier.
“Normally, of course, this is how science progresses: One research comes up with a hypothesis, which others question and test,” writes Bazelon. “But shaken-baby cases are haunted by the enormous repercussions of getting it wrong — the conviction of innocent adults, on the one hand, and on the other, the danger to children of missing serious abuse.”
There’s another danger. For if we’re getting it wrong — if the re-bleeding hypothesis explains even some of these cases — we’re putting kids at risk by not educating parents and pediatricians to early symptoms of the life-threatening condition.
You can read Bazelon’s article in full here.