Defending Those Accused of Infanticide
For a Massachusetts criminal defense lawyer, defending an individual accused of killing a child is a formidable challenge. It is, perhaps, the crime that society finds most unsettling. To successfully defend such an individual, the criminal defense lawyer must have an intimate understanding of not only murder investigations, but the very real differences of investigations into child murders.
Most child murders occur before the child reaches age two, with the greatest percentage occurring within the first year of life. Infanticide is the intentional killing of a baby within its first year. The child is most often killed by a parent, which is known as filicide. The perpetrator usually uses a “personal weapon,” such as the hands or feet, to commit the murder.
Neonaticide is the deliberate killing of a child within 24 hours of its birth and almost always committed by the mother. Because most perpetrators claim that the child was stillborn, forensic experts must determine whether or not the child was alive at birth. This can be a very difficult task.
The presence of milk or food in the stomach obviously indicates that the child had been alive for some period of time. The hydrostatic test is traditionally used to determine if a child has breathed. During the autopsy, the pathologist removes the lungs from the body of the infant and places them in water. If the lungs float, the child is presumed to have breathed. If they sink, the child is presumed to have been stillborn. This test is not completely reliable, however, as lungs may float because of decomposition.
Because of the unreliability of hydrostatic testing, examiners also use microscopic examination of the lungs to try to determine if the child has breathed. If the alveoli are collapsed, the child is presumed not to have breathed, but if they are distended, the child is presumed to have breathed. This manner of testing, however, is even more unreliable than hydrostatic testing because if there was an attempt at resuscitation, the air passages would be distended. Examiners today rely mostly on the hydrostatic test to determine if the child has breathed.
Strangulation, drowning, and abandonment are methods mothers commonly employ in neonaticide. The most common method is suffocation, either with a hand or a pillow or blanket. A newborn that is abandoned can survive seven to ten days without food or water, depending to a great extent on the weather conditions. A parent may be unfairly prosecuted for murder, when she did not deliberately intend for the infant to die, but simply failed to appreciate the extent of the infant’s vulnerability to the cold or to the heat. Some parents, anticipating that a passerby will find the baby, believe they are not really abandoning the baby at all.
If an infant is killed after the first 24 hours, the mother is no longer the primary suspect, as the infant may very well have been murdered by a husband, father, or boyfriend, perhaps working together with the mother to accomplish the end. These murders often fall into the categories of the classical battered child, impulse or angry homicide, gentle homicide, or miscellaneous.
Battered Baby Syndrome
Battered Baby Syndrome occurs when a child is repeatedly inflicted with trauma at slight provocation. The person often deprives the child of foodor water and strikes the infant in the head or abdomen. Physicians may suspect a child is a victim of the Syndrome if, during an examination, they discover old or recent bruises, fractures, or other injuries. Parents may unwittingly make themselves the objects of suspicion if they delay in taking the child to the doctor or give explanations for injuries inconsistent with the physicians observations.
If the child is dead and Battered Baby Syndrome is suspected, examiners check for bruises to the head and marks from being gripped tightly or hit with a belt or coat hanger. If marks are not visible, long incisions are made down the back of the body to reveal soft tissue hemorrhage. Beatings that cause death may cause massive bleeding into the soft tissue.
Investigators may assume the child a victim of Battered Baby Syndrome when, in fact, the child is the victim of neglect, parental ignorance, or congenital disease.
The majority of infanticides or child murders are the result of the caretaker’s inability to control his anger. More often, such a murder is committed by the father, mother’s husband or boyfriend. Death is usually caused by head trauma, and the child is usually thrown or slammed into an object. A person might kill the child by dipping him into scolding water.
Gentle homicide refers to smothering, and is the second most common type of child murder. It is also the most commonly missed method of homicide, and is mostly caught through admission or witnesses. There is almost never any evidence of trauma. No tests exist to determine if a child was smothered. Therefore, it is impossible to know the true number of smotherings that occur. There are disagreements over what percentage of Sudden Infant Death Syndrome (SIDS) cases are actually smotherings. It is estimated to be as many as 10%. These types of murders often go undetected, especially in urban communities with high crime rates where police and the medical examiner’s office are too busy to spend time on investigations.
There are two categories that miscellaneous child murders fall under. One is when the killer, who is usually a parent, kills for a psychotic reason. For example, they may think the child is possessed by the devil, or is the devil himself. The other category is when a sane person kills for an unknown reason. This person may blame another person, or may say it was an accident. Occasionally, infants and young children can be killed by their siblings as a result of jealousy or sibling rivalry.
Munchausen’s Syndrome by Proxy
Munchausen’s Syndrome by Proxy (MSBP) occurs when a parent makes up a child’s medical history and takes him to the doctor or hospital with fictitious symptoms or symptoms brought about by the parent. The parent causes medical distress in the child in order to gain attention, praise, or sympathy.
The perpetrator is almost always the mother, and the father usually supports her and does not believe that she is guilty. Occasionally fathers or other relatives are the perpetrators, and there have been cases where babysitters have caused injury to a child in order to be praised for saving its life. This has also occurred with nurses or medical personnel who administer injections to children and infants in order to cause a crisis, then resuscitate them so that they appear to be heroes or heroines.
There are two categories of MSBP. The first category is simulation or mild form, for instance when the perpetrator creates a false medical history for the child, and/or tampers with samples and medical charts. For example, a mother may complain that her child has blood in his urine, and then pricks her own finger to add blood to the sample. The second category is production or severe form. Here, the perpetrator intentionally causes injury to create symptoms of an illness, like smothering the child to unconsciousness only to bring him to the hospital. The person, usually the mother, claims that the child has a history of losing consciousness, and the doctors perform tests, but never find anything. This type of MSBP is very dangerous and can easily lead to death.
Suspicious physicians have caught mothers on hospital room videotapes smothering their children. Video surveillance is the most effective way to catch perpetrators, but may require a court order. The most common test for MSBP is the suspect/victim seclusion test. This is performed by separating the suspect and the child for a period of time and seeing if the symptoms dissipate and then return when they are reunited.
There are many signs of MSBP: (1) a prolonged, undiagnosable illness, with symptoms and signs that make no medical sense; (2) a child’s failure to respond to therapy; (3) a dissipation of symptoms when the child is removed from the suspected offender’s care; (4) the mother not seeming worried and always staying at the child’s side at the hospital or having an unusually close relationship with the hospital staff; (5) siblings having been diagnosed with SIDS; (6) the mother having nursing or medical experience in the very type of illness the child is said to suffer from; (7) the mother welcoming medical tests of the child even if they are painful; and, (8) the mother attempting to convince the hospital staff that the child is still sick when being released. Of course, many of these “signs” may lead hospital staff and the police to charge an innocent woman with this horrible crime.
The mothers or other perpetrators are often very skilled liars, and some believe their lies as if they were realities. They often react with intense emotions when questioned, and then are calm when left alone. The parent and child are usually extremely close, and in most cases of MSBP, there is a marked absence of direct physical abuse or sexual assault.
Shaken Baby Syndrome
Shaken Baby Syndrome (SBS) occurs when an infant suffers retinal, subdural, or subarachnoid hemorrhages from violent shaking. Because the baby has a soft brain, a heavy head, and weak neck muscles, he can sustain a severe injury when his head is moved in a whiplash motion. However, despite the recent media coverage on Shaken Baby Syndrome, it is more hypothesis than truth. Many infants have been improperly diagnosed SBS, causing untold misery to innocent parents and caretakers.
Given that pathologists conducting autopsies uncover evidence of head trauma consistent with the head having been struck against a hard object or surface, the diagnosis of Shaken Baby Syndrome is often misleading. In response, some have begun to refer to the syndrome as “Shaken Impact Syndrome.”
Symptoms consistent with SBS may be caused by accidents, unhealthy diet or disease. In one particular case, a child was brought to the hospital with what looked like SBS, but managed to live long enough that the doctors could perform tests on him. These tests revealed vitamin deficiencies that caused the same symptoms as SBS in the brain. Had the child died and the doctors not been able to perform the tests, the diagnosis would have been Shaken Baby Syndrome.
Contact a Cambridge Criminal Defense Attorney
If you have been charged with the murder of a child, contact us at 617-492-0055 at your earliest convenience. Kevin J. Mahoney is a Massachusetts criminal defense lawyer and author of Relentless Criminal Cross-Examination.
DiMaio, Vincent J. and Dominick. Forensic Pathology, Second Edition, CRC Press, New York, 2001.
Geberth, Vernon J. Practical Homicide Investigation, Third Edition, CRC Press, New York, 1996.