I began researching Shaken Baby Syndrome because of a tragedy and a mystery.

The tragedy: One of the gentlest, most patient and most mature women I’ve ever known was babysitting for a sick child. The child had a seizure and died in the hospital two days later. The babysitter was charged with manslaughter. It took three years for the case to come to trial, in part because of perjury on the part of prosecution witnesses. Despite a weak case and little investigation or testing, the sitter was convicted of manslaughter and sent to prison.

The mystery: Of all the people I’ve ever known, this woman is the least likely to abuse a child, especially so severely that death is the result. She has an unusual tolerance for noise (screaming and crying), an unusual ability to deal with children’s behavior firmly but lovingly, and an unusual tenderness and empathy for children. Assuming she did not hurt the baby, what did happen?

Shaken baby syndrome is the name for a constellation of symptoms occurring together. These are: subdural hemorrhage (bleeding in the brain), retinal hemorrhages (bleeding in the eyes), and a discrepancy between the history provided by the caretaker and the severity of the injuries. There may or may not be other evidence of trauma (bruises, broken bones, etc.). Generally the caretaker describes a minor, unwitnessed fall and there may be a delay in seeking medical attention.

The syndrome was defined by Dr. John Caffey in 1972 (1). During that decade, people seem to have been reluctant to believe that a parent or caretaker would harm an infant. In the 1980s quite a bit of research was published on the subject, and it became clear to the majority of doctors that shaking was indeed the cause of many infant deaths. My impression from reading articles published during this period was that researchers were searching for truth and advancing hypotheses rather than jumping to conclusions. They were concerned and open-minded. In the 1990s, however, several unproven hypotheses hardened into dogma.

Timing

The timing of the injury is one example. It is now a dogmatic assumption that the last person alone with the child is the perpetrator. Everything that person says is considered to be a lie, and everything a previous caretaker says (i.e. "the child was fine when I left") is considered to be truth. This is despite a dearth of evidence on timing. Very few articles specifically address timing. In 1995, Nashelsky (2) found only three cases in the literature where the interval between lethal infant shaking and the onset of severe symptoms (seizure, apnea, coma) was documented. In two of the cases, symptoms arose immediately after shaking. In the other case, there was a delay of four days between shaking and onset of seizures. In 1998, Gilliland (3) reported an interval of less than 24 hours in 80% of the 76 cases reviewed and an interval of more than 72 hours in four of the children. It is generally agreed that a child is not asymptomatic in the interim, but symptoms may be general: lethargy, irritability, loss of appetite, vomiting. A caretaker not aware of what happened with a previous caretaker may attribute such symptoms to illness. Without a history of serious trauma, even doctors do not always suspect life-threatening brain damage with such nonspecific symptoms!

It wasn't for another couple of years that I found a letter to the editor that described a case that seems clearly to indicate a delay between injury and arrest. A 13-month-old girl was brought to the hospital on the morning of September 18, 1999. She had vomiting that had lasted 24 hours and was irritable and lethargic. Because she had bruises, abuse was suspected. She was admitted and the police were called. It was noted on her chart that she was fussy and clingy, but interactive and responsive. It was not until 2:00 the following morning that a nurse on her rounds decreased respirations and realized that something was seriously wrong with the baby. She was taken to intensive care where she died the following evening. The mother, meanwhile, had fled town.

Had that nurse been a babysitter instead, she may well have been charged with manslaughter or murder under the theory that the last person with the child must be responsible. The theory postulates that severe symptoms are immediately apparent when a life-threatening injury has been sustained and people are convicted on expert opinion to that effect. (4) It would take concentration camp "experiments" to procure accurate information for a large number of children on the length of time between shaking and onset of severe symptoms. For obvious reasons, research that would conclusively prove or disprove hypotheses on timing cannot be conducted.

Despite a dearth of evidence, however, the National Center on Shaken Baby Syndrome asserts that all "true experts" have reached a consensus that severe injuries are not inflicted hours earlier. "Instead, brain swelling which progresses rapidly, causing breathing difficulties, loss of consciousness and seizures is a clear indicator that the cause of the brain swelling immediately preceded the onset of symptoms by only minutes to possibly an hour. Once this basic tenet of medical science is understood, the answer to the ‘whodunit’ is a matter of obtaining a minute-by-minute account of when the baby was fine or okay and when the baby became symptomatic or sick. Those who inflict severe injuries on children most often give the answers to those questions inadvertently, since they don’t know we can pin down the time of injury as closely as we can." (5)

Prosecutors and police officers like this kind of simplicity. According to this dogmatic assumption, the last person with the child is the perpetrator. There is no need to waste time investigating. It’s easy to build a case against a person because there are no witnesses and no alibi, and organizations such as the National Center on Shaken Baby Syndrome are ready to help by providing "true experts" who can convince juries to believe the dogma. (Any expert who doesn’t agree is termed an "irresponsible expert".)

I know of a case in which a babysitter (the last person with the child) passed a lie detector test. The previous caretaker, the mother, failed. Prosecutors still managed to get the babysitter convicted and sentenced to 53 years, after the first trial resulted in a hung jury with a majority voting for acquittal. In at least one other case, the previous caretaker had a history of child abuse; the person accused did not. The dogma is defended, regardless of the individual circumstances of a case.

Differential Diagnoses

The presumed "fact" that severe symptoms occur almost immediately is combined with the dogmatic assumption that the symptoms always indicate shaken baby syndrome. Doctors may jump to that conclusion and neglect to test for differential diagnoses. In some cases, doctors have leapt to the conclusion that the last person with the child shook him even when there were few or none of the classical medical symptoms! (6)

I believe strongly that a number of medical tests should be required before charges can be brought against a suspected perpetrator. Some rare metabolic disorders, such as Glutaric Aciduria type 1, have symptoms quite similar to shaken baby syndrome, and have in fact been misdiagnosed as such a number of times (7). Hemophilia or other clotting disorders may not manifest during the first year of life, but may be contributing factors (8). A number of cases I’ve read have in common the fact that the baby had recently received vaccinations (9). It could be that some individual children have allergic or heightened reactions to vaccinations. A baby may be deficient in Vitamin K, necessary for proper blood coagulation, especially if he/she is breastfed. If analgesic drugs have recently been taken, it could exacerbate any existing problems.

One mother lost custody of three children after authorities assumed she had shaken her baby, who died several years later. Criminal charges were not filed for some reason and she had another baby who manifested the same symptoms. This time, she was lucky. The doctor tested for alternatives and discovered that the child had a rare genetic condition, Menkes' Disease. They tested tissue from the child who died and he had the same condition. Unfortunately, she is now in a battle to recover the children taken from her because they have been adopted out and the statue of limitations for reversing the adoption has passed. (10)

I suspect that it is easier to build a case against a person without testing for alternative causes for the injuries, although it is difficult to understand how truth could hurt the prosecution in cases of real abuse. Those intent on "defending children" through the prosecution and conviction of their caretakers may consider their motives a higher good than the truth. While the lack of medical tests for alternatives should provide reasonable doubt, jurors often vote with their emotions. Certain that no short fall could lead to such horrible injuries, they may be convinced by a skillful prosecutor to declare an innocent person guilty in order to avenge the death of a defenseless infant.

But incarcerating an innocent parent is just another form of child abuse, sentencing that person’s children to childhood without a parent. Truth should be the objective, never revenge.

Character and History of Defendants

In some cases, it is quite clear that a child was shaken and abused. The perpetrator may have had a history of violence or hostility, a neighbor may have overheard the incident, or there may be other apparent injuries. In other cases, it is not so clear. A Texas prosecutor bemoaned the fact that it is difficult to get long prison terms for defendants. She stated that defendants do not appear to fit a criminal stereotype. "Some of it is based on the fact that you have these defendants who many times have had no prior criminal history and no past run-ins with the criminal justice system. They also usually have good character witnesses." (11)

If defendants in these cases "usually" have good character witnesses and no history that would indicate a tendency toward this type of violence, perhaps something is going on that doctors don’t yet understand! Perhaps not every person accused is guilty.

Many articles deal with possible motives for shaking. Caffey believed the most common motive is to correct minor misbehavior. "Crying" is often cited as the motivation, despite the fact that all babies cry a lot. No distinction is made between defendants who historically have shown great tolerance for crying and those who are immature and expect children to meet their needs rather than vice versa. A great deal about the defendants’ character and history is assumed without validation, i.e. that they are under stress, that they were abused as children, that they are emotionally unstable, that they have inadequate emotional support.

Criminal Justice System is not Perfect

If the initial investigation by police is shallow, superficial or inadequate, valuable clues as to what really happened are lost. Police are under a lot of pressure and are often overworked. Nevertheless, the consequences of shoddy work may well be that a real perpetrator remains free while an innocent person is convicted, with all that implies.

Although our criminal justice system is better than many, it is far from perfect. The book Actual Innocence by Peter Neufeld and others (12) looks into the phenomenon of innocent people convicted of heinous crimes and later cleared by DNA or other new technologies that prove beyond doubt that the convicted criminal is innocent. At the time I am writing this, 164 people have been released from long prison sentences and even death row based on absolute proof of their innocence made possible by technological advances. Many, many more cases are in process of being reviewed. The National Commission on the Future of DNA Evidence states, "The strong presumption that verdicts are correct has been weakened." Judges, lawyers and jurors should be aware of this and maintain some humility as they search for truth. Innocence must be presumed until guilt is proven.

This is not to say that most people convicted of crimes are innocent! But would we be content to know that most of a particular airline’s planes arrived safely at their destinations? It’s important to be diligent in investigations and not to base criminal convictions on unfounded assumptions. Proverbs 17:15 states: "Acquitting the guilty and condemning the innocent—the Lord detests them both." The objective should always be truth, not winning the case.

There is no DNA evidence in shaken baby cases. There are generally no witnesses. Character and past history are too often considered irrelevant. Convictions may be based completely on the "expert" opinion of doctors who did not even test for differential diagnoses, or were hired specifically to help convict a defendant. In this scenario, how can an innocent person defend him/herself?

Conclusion

I am clearly convinced of the innocence of the woman whose indictment led to my research on shaken baby syndrome. This opinion is not held lightly. I know her well and was impressed with her parenting skills since her first baby was born. I’ve spent hundreds of hours watching her interact with kids in every imaginable situation, and have been ever more impressed with her maturity, competence and empathy.

The case against her was based solely on medical evidence. No official, other than the police officers who initially interrogated her and who were already convinced of her guilt, ever bothered to speak to her. No doubts have ever been entertained by her accusers. In their view, based on theory, assumption and medical dogma, she is guilty and everything she may say to the contrary is a lie.

As the days and months and years passed while we waited for her trial, my heart broke to think of the loss her little children would experience if she were convicted. From the day they were born, I’ve thought how lucky they are to have such a loving and functional family. There is no question but that she was under a great deal more stress than ever in her life after her indictment, yet she chose to live each day as it came. Her faith in God deepened. She appreciated the little blessings each day had to offer. She steadfastly maintained her innocence despite threats and offers of plea bargains.

In reviewing hundreds and hundreds of cases, I've noticed that a substantial number of defendants have excellent history and character, refuse to admit guilt or plea bargain, pass lie detector tests (which are much easier for an innocent person to fail than for a guilty person to pass), and maintain their innocence even after conviction, when admitting guilt can bring earlier parole. It is my strong opinion that there is something doctors don't know yet. Unfortunately, no one is even looking for possible alternates. To question the theory is heresy.

In 1830, Thomas Sharkie wrote, "The maxim of the law is…that it is better that ninety-nine…offenders shall escape than that one innocent man shall be condemned."

In cases of alleged shaken baby syndrome, suspects are presumed guilty and required to prove their innocence. They are prohibited from talking to others who cared for the baby earlier, so cannot investigate what might really have happened. There are no witnesses and no possible alibis if the suspect truly was the last person alone with the child.

It is my hope and prayer that honest researchers will question the dogma and continue to search for the truth, the whole truth and nothing but the truth rather than relying on unproven assumptions when people’s lives and futures are at stake. In the meantime, I hope and pray that doctors, police officers, prosecutors and jurors will maintain an attitude of humility. No one should be convicted on medical evidence alone in the absence of a thorough investigation documenting who was with the child and what transpired for at least the 72 hours prior to the onset of the severe symptoms. Thorough testing should always be done to rule out differential diagnoses.

Nothing can change the tragedy of a baby’s death. But two wrongs do not make a right. Wrongfully depriving innocent children of their mother and a solid, secure childhood home only compounds the tragedy.

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If you're reading this because you or someone you know has been wrongly accused, please e-mail me at Susan@SusanCAnthony.com with your story.