by Theo Schall

Shaken Baby Syndrome (SBS), a medical diagnosis, is characterized by a triad of clinical findings: swelling of the brain, bleeding on the brain, and bleeding behind the eyes. After a recent investigation by journalism students at Northwestern’s Medill Justice Project, medical and legal doubt has been cast on the legitimacy of the diagnosis. Critics contend that the triad of findings aren’t specific to child abuse and that due to overconfident testimony on the part of medical experts, innocent caregivers have been convicted of crimes they didn’t commit. In the midst of a widespread reevaluation of the diagnosis, a number of experts who once testified in court in support of SBS have recanted their statements. A growing number of convictions have been overturned.

In 2009, the American Academy of Pediatrics recommended that SDS be renamed “Abusive Head Trauma” “in recognition of the need for broad medical terminology that includes all mechanisms of injury.” Critics claim (pdf) the change is purely semantic and challenge the underlying assumption that abuse can be determined simply from clinical manifestations. It’s not clear that the new name actually succeeds at the stated goal (doesn’t the word “abusive” strongly suggest that the mechanism of injury is abuse?), but the change has been lauded as bringing diagnostic clarity to the courtroom.

This is the issue that I find most curious – should diagnoses be crafted to clarify their use as charges? The conflation of diagnosis with crime requires providers to offer healthcare and perform forensic analysis simultaneously. Professionals who work with vulnerable people are already legally mandated to report any suspicions of abuse or neglect, so in many respects their work already intersects with the law. But there is a difference between making a substantiated report of one’s suspicions and using one’s diagnostic role as a mode of substantiation.

The justice system grants medical professionals a lot of descriptive power over the body. Medical records are used to prove allegations of abuse and assault. Psychiatrists have long testified to the capacity of defendants. But we rely on judges and juries to mediate medical findings; even when doctors find individuals medically unfit to stand trial, judges make the final decision as to whether they are legally unfit. An underlying assumption of a diagnosis like SBS is that crimes can be diagnosed medically, but that assumption is faulty. Doctors aren’t police, prosecutors, or judges, and the information a doctor needs to diagnose a physical condition is different in scope and specificity from what a detective needs to solve a crime. Sure, medical findings often constitute a large part of a criminal case, but they are neither necessary nor sufficient. A diagnosis that unambiguously points to criminal abuse or neglect oversteps the bounds of medicine, intruding upon the sphere of the court.

We know perfectly well that for all their good intentions, medical providers lack the capacity to self-regulate the ethics of their profession. Even good diagnoses evolve over time as science and the social construction of problems change. If the justice system allows medical diagnosis to take its place, it simply amplifies medicine’s problems with self-regulation and evolving clinical standards. The advantage of multiple systems of judgment with disparate values is the wealth of opportunities for critical evaluation. We need both medicine and the legal system to do their independent best to treat children and investigate crime. No one wants children to be harmed or abusers to go undiscovered, but it’s equally important that we not incarcerate people based upon speculative science taken at face value.

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