Responding to Child Homicide: A Statutory Proposal
Phipps, Charles A., Journal of Criminal Law and Criminology
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. …