Responding to child homicide: a statutory proposal.

AuthorPhipps, Charles A.

    While public opinion in the United States often is hard to accurately measure, an occasional dramatic criminal case presents an issue with such starkness that the public response demonstrates society's instinctive reaction to the issue. Rarely has public intrigue with child homicide been more clearly exemplified than the trial, conviction, and post-conviction disposition of British au pair Louise Woodward in the fall of 1997.(1)

    Louise Woodward was indicted in Massachusetts for the murder of eight-month-old Matthew Eappen. The Commonwealth's case was based primarily on medical evidence indicating the baby died as a result of a violent shaking and fracture to the base of the skull that led to fatal brain injuries.(2) Although the jury convicted Woodward of murder, the trial judge ruled that the con,fiction for murder amounted to a substantial miscarriage of justice, reduced the conviction to involuntary manslaughter, and released the defendant after sentencing her to time served.(3)

    At the heart of his opinion was the trial judge's belief that Louise Woodward did not act with malice:

    I believe that the circumstances in which Defendant acted were characterized by confusion, inexperience, frustration, immaturity and some anger, but not malice (in the legal sense) supporting a conviction for second degree murder. Frustrated by her inability to quiet the crying child, she was `a little rough with him,' under circumstances where another, perhaps wiser, person would have sought to restrain the physical impulse.(4) This type of justification is not unfamiliar to child abuse prosecutors. Juries and judges would like to believe a child's death results from accidental or perhaps slightly "rough" behavior, and not that the death is the result of a caretaker who intends to kill or cause great bodily harm to a child. A finder of fact must be convinced that a defendant acted with a particular mental state to convict the person of murder, and many juries (and judges) are reluctant to make such a finding when a child is killed at the hands of a caretaker.(5) This is so for several reasons.

    First, motive is often unclear when a caretaker kills a child. Unlike a fight between adults that escalates to a killing, there may be little evidence as to why a caretaker would kill a child. Even when a motive exists, the reason for the killing may be so trivial as to be nearly incomprehensible to most people.(6) Moreover, it is often difficult for the finder of fact to determine whether the fatal act resulted from a one-time response from frustration and anger, or if it was the result of hatred and genuine ill-will toward the child.

    Another difficulty with prosecuting child homicide is the frequent lack of external injuries. A gunshot or knife wound is readily understandable; evidence of a cerebral hematoma in an otherwise healthy child is not. Child homicide often is committed by a caretaker who is alone with a child for an extended period of time,(7) almost never involves the type of deadly weapons commonly associated with homicides of adults and older children, and results in injuries requiring careful observation by a medical examiner.(8) As a result, child homicide cases often result in a battle of medical experts, with the jury decision hinging on the credibility of the experts.(9)

    Finally, many people simply cannot believe adults kill children in their care, leading some jurors and judges to resist verdicts that place a high degree of culpability on a caretaker.(10) Additionally, even prosecutors,(11) child protective service workers, police, and medical professionals(12) may fail to recognize or pursue cases of child homicide.(13)

    In spite of frequent societal lethargy on the issue, some legislatures have actively encouraged useful innovations. For example, legislators aware of the risk of misdiagnosing child abuse as sudden infant death syndrome(14) have encouraged criminal investigation of suspicious child deaths by mandating autopsies of children who die with no known cause. Other legislation encourages the formation of child death review teams to bring together professionals from a variety of disciplines to evaluate child deaths in a jurisdiction and further investigate deaths that do not appear to be from natural means.(15)

    Some jurisdictions faced with recurrent problems have enacted special homicide statutes.(16) These statutes take two basic forms. One type of child homicide statute simply lists a child physical abuse offense as an enumerated felony in a felony murder statute. The second type of law designates a separate homicide offense for the death of a child caused during an act of child abuse.(17) Both types of statutes replace the traditional mental state element for the crime of murder with either proof of the intent attached to the underlying felony, or proof of recklessness, extreme indifference to human life, or a similar mental state. These statutes ease the difficulty of proving a more serious homicide offense and establish a significant penalty for the violent killing of a child.(18)

    This article examines the need for these special statutes. Part II analyzes sociological and medical information related to child homicide in the United States. Part III considers case law, highlighting difficulties of trial judges, juries, and appellate courts relying on circumstantial evidence to establish intent in child homicide cases. Part IV examines current child homicide statutes in the United States. Part V presents model child homicide statutes and recommendations.


    Although thorough data on child homicides(19) do not exist, the U.S. Advisory Board on Child Abuse and Neglect estimates that approximately 2,000 infants or young children a year are victims of homicide by abuse or neglect in the United States.(20) By far, children under five are at greatest risk for being killed by abuse or neglect, with homicide being the "leading cause of death related to injury in the first year of life."(21) Finkelhor reports that children under five are the victims in 92% of child abuse deaths.(22) Of these, 40% of child victims are under one year old, 18% between the age of one and two, and 13% ages two to three.(23) The official rate of homicides of children under five is 3.6 per 100,000,(24) although some experts believe the actual number to be as much as 11.6 per 100,000.(25) According to one author, homicide is the cause of death among children seven times more frequently than meningitis and twenty times more often that AIDS.(26)

    Those who kill young children are nearly always caretakers or persons in a significant relationship to the child. In one of the few studies to systematically examine the relationship of the perpetrator to the victim, Starling et al. found, in reviewing the records of 127 young victims of fatal and non-fatal abusive head trauma whose abuser was identified, 94.5% were in a parent or caretaker relationship to the child.(27) Of these, 21% were babysitters, 37% fathers, 20.5% boyfriends of the victim's mother, 12.6% mothers, and 3% stepfathers.(28) The study concluded that men and babysitters are much more likely to commit these offenses than previously suspected.(29)

    The homicide of infants and young children is infrequently accomplished with the use of firearms, knives, or other weapons commonly classified as dangerous.(30) Rather, very young children are killed at the hands of their caretakers. Although the most common cause of death in children under five years of age is beating,(31) the very youngest victims are more likely to be suffocated, violently shaken, or thrown.(32) These causes of death are discussed below.


      In recent years the existence of shaken baby syndrome has gained heightened public awareness due in part to highly publicized criminal cases and to intensive public information campaigns.(33) In general, shaken baby syndrome describes injuries of infants and young children resulting from a violent shaking inflicted by an adult. As defined by one pathologist, shaken baby syndrome is "the result of a violent shaking force that causes a whiplash acceleration-deceleration motion of the relatively unstable infant's head "upon its neck."(34) Based on comparisons to accidental injuries and statements made by numerous abusers,(35) medical literature describes the mechanism of shaken baby syndrome as an adult who holds a child by the rib cage or shoulders and severely shakes the child forward and back for a period ranging from five to twenty seconds and may involve as many as forty to fifty violent shakes.(36) Victims of violent shaking are usually under two years old, although they may be older depending on the relative sizes of the child and the adult.(37)

      During the shaking, the child's head swings forward until the chin strikes the child's chest and then swings back until the back of the head strikes the child's back. Due to an infant's relatively large head and weak neck muscles, the head moves in a violent "whiplash" fashion.(38) The resulting trauma to the brain and accompanying lack of oxygen to brain cells causes the brain to swell and to increase the pressure within the skull.(39) If not relieved, the swelling will kill the child.(40) Victims who survive a violent shaking often lose their sight or suffer permanent brain damage.(41)

      The motion of the child's brain rotating violently within the skull also causes tiny veins to tear and bleed in the compartments between the brain and its coverings.(42) This bleeding results in a subdural hematoma or subarachnoid hemorrhage (or both).(43) The bleeding is a marker that severe force has been used, but is not itself the most serious injury; the life-threatening injury is the direct damage to the brain itself.(44)

      Rather than solely shaking an infant, abusers often throw or slam a child onto a floor, against a wall, or into another firm surface, resulting in...

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