The Misuse of Abuse: Restricting Evidence of Battered Child Syndrome

By Nelson, Kip D. | Law and Contemporary Problems, Winter 2012 | Go to article overview
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The Misuse of Abuse: Restricting Evidence of Battered Child Syndrome

Nelson, Kip D., Law and Contemporary Problems

"We must not allow our abhorrence of an act to become the abhorrence of conscious and deliberate thought and observation in connection with child abuse." (1)


The line between medicine and law has never been exactly bright. Yet when physical violence occurs, it naturally implicates both disciplines. This interdisciplinary blend is particularly evident in the case of child abuse. Thus, as child abuse became a recognized phenomenon in medical science, it also became a subject of criminal prosecution. As the scientific definition of child abuse has expanded, so has its importance in the legal arena. Battered child syndrome (BCS), which was originally intended to be a helpful tool for physicians, has evolved into a cunning instrument for prosecutors and a clever trump card for parricide defendants.

Since 1962, doctors have been researching child abuse in the form of BCS. More recently, over the past few decades, both child abuse prosecutors and homicide defendants have sought to introduce evidence of the syndrome into the courts. Because of these two distinct and conflicting forms, one might ask, "[W]hich use of battered child syndrome do you believe? Many courts have still not figured this out." (2)

Medical and mental health professionals generally use BCS as a shorthand description of serious abuse. Children who are intentionally harmed by their caretakers are labeled battered children. (3) Injuries that may fall within BCS range from minor bruises to fatal skull fractures. (4) Furthermore, the broad syndrome may also be defined to include the profound psychological effects of abuse. (5) In order to determine the intentionality of the injuries, the repetitive nature of child abuse is often a particularly important aspect of BCS. (6)

However, the original definition of the syndrome has not been closely adhered to in all cases. Thus, for all the good it can do, the introduction of BCS evidence in some cases is also rife with peril. As one student commentator described it, BCS evidence "is a weapon capable of mischief." (7) In particular, when BCS is used by prosecutors to mask otherwise impermissible and prejudicial character evidence and by defense attorneys as a justification for homicide, one should worry about its admissibility into the judicial system. In these cases, lawyers have improperly shifted the focus of BCS from the abused child to the person who is alleged to have caused the abuse. Because prosecutors and defense attorneys are distorting BCS and obfuscating its role in medicine, judges should take care to limit testimony regarding BCS to facts about the abuse itself rather than the abuser.



Child abuse has occurred everywhere for centuries, albeit under different levels of approval. (8) In the West, philosophers such as Aristotle suggested that killing defective children was wise, and Roman law gave fathers ultimate command over their children, including control over life and death. (9) Parents in the eighteenth century went so far as to maim their children so that they could become lucrative beggars or circus exhibits. (10) Even into the twentieth century, child abuse was generally an unrecognized trauma. (11)

In 1962, Dr. C. Henry Kempe and his colleagues published a seminal article on child abuse and introduced the term "battered child syndrome." (12) Kempe used the term to describe "a clinical condition in young children who have received serious physical abuse, generally from a parent or foster parent." (13) Kempe recognized physicians' reluctance to consider abuse as the cause of a child's injuries. (14) But he admonished them that "[t]o the informed physician, the bones tell a story the child is too young or too frightened to tell." (15) Based on this recognition, Kempe argued that "the physician's duty and responsibility to the child requires a full evaluation of the problem and a guarantee that the expected repetition of trauma will not be permitted to occur.

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