Mommie Dearest? Prosecuting Cases of Munchausen Syndrome by Proxy

13-WTR Crim. Just. 26

Criminal Justice
Winter, 1999
Feature
Lynn Holland Goldman, Beatrice Crofts Yorker a1

Copyright (c) 1999 by the American Bar Association; Lynn Holland Goldman, Beatrice Crofts Yorker

MOMMIE DEAREST? PROSECUTING CASES OF MUNCHAUSEN SYNDROME BY PROXY

*27 Munchausen syndrome by proxy (MSBP), a form of child abuse in which a caretaker falsifies or induces illness in a child for the purposes of gaining medical attention, has gained public recognition. The American Professional Society on the Abuse of Children (APSAC) acknowledges that the criminal justice system has made significant strides in identifying, preventing, and prosecuting child abuse.

Each form of child abuse-neglect, physical abuse, sexual abuse, and emotional abuse-follows a predictable sequence of social and legal recognition. First, there is general reluctance to admit that a specific type of abuse occurs. Second, the specific abuse is acknowledged, but grossly underestimated. Typically, this stage is followed by a more realistic appraisal of the prevalence of the abuse and an approach to intervention. Unfortunately, the occasional overzealous or less-than- professional intervention triggers a period of backlash. Predictably, there is a current legal backlash against the medical field over MSBP, as this type of child maltreatment defies traditional descriptions of abuse and defense attorneys are devising new strategies to counteract allegations of MSBP.

In the final stage, research-based approaches are adopted in the identification and prosecution of each form of abuse. The APSAC task force is committed to providing practitioners with this research in MSBP.

Definition

An APSAC task force comprised of psychiatric, pediatric, forensic, psychological, and legal experts published a consensus paper in 1998 (Catherine Ayoub & Randall Alexander, Definitional Issues in Munchausen, 11 APSAC ADVISOR 7 (1998)) defining the constellation of behaviors currently used to describe MSBP. Since 1995 the members have met semiannually at the conferences of the American Academy of Child and Adolescent Psychiatry and the American Professional Society on the Abuse of Children to discuss their views of MSBP with the ultimate goal of providing scholarly guidance to practitioners in the field of child protection.

Some of the problems the group has addressed include:

  • A diversity of terms has been used to describe and prosecute this form of child abuse. For example, “Munchausen syndrome by proxy” is the original term used in 1977 by Roy Meadow, a British pediatrician, which was based on “Munchausen syndrome,” coined in 1951 to describe adults who made themselves ill. “Factitious disorder by proxy” (FDP), the diagnostic label provided by the Diagnostic and Statistical Manual of Mental Disorders, DSM-IV (APA, 1994), is also used. “Medical battering” has been suggested by pediatrics, to resemble the term “battered child syndrome.” Finally, prosecutions have sometimes successfully used the specific method of assault-e.g., suffocating, poisoning, or infecting-in describing what the perpetrator did to the child.
  • If the terms “Munchausen syndrome by proxy” or “factitious disorder by proxy” are used in prosecuting the abuse, expert testimony is required and often results in a battle of the psychiatric and/or pediatric experts over definition issues that have been historically argued in the literature.
  • The exotic terms “Munchausen syndrome by proxy” and “factitious disorder by proxy” tend to confuse judges and juries. Child protection then rests on the prosecutor's ability to prove the existence of a mental disorder in the perpetrator rather than simply prove that abuse had occurred to the child. This is analogous to having to prove that a perpetrator suffers from pedophilia in order to prove that a child has been sexually abused-an unnecessary hurdle for child protection.

The task force has separated the victimization of the child from the motivation of the perpetrator, resulting in a recommendation that the term “pediatric condition falsification” be used to describe this type of abuse, regardless of the perpetrator's motivation. The term “factitious disorder by proxy” should be reserved to describe the motivation of a perpetrator only if the purpose of the fabrication is to gain medical attention. (Ayoub & Alexander, supra, at 7-10.) Several motivations have been identified in perpetrators of pediatric condition falsification in addition to the Munchausen, or FDP, motive. These include parents who exaggerate or falsify illness in their children for the purpose of getting financial payments, and parents who batter their children and then lie about it when seeking treatment. Some cases once thought to be the result of SIDS (Sudden Infant Death Syndrome), such as that of Martha Ann Johnson, a mother who smothered a child each time her husband left her, with the object of getting him back, are now seen as examples of pediatric condition falsification. As is the case of People v. Hoyt, 620 N.Y.S.2d 520 (1994), in which Waneta Hoyt admitted she suffocated her babies because they cried too much. Ideally, prosecution of pediatric condition falsification can be accomplished without having to prove that the perpetrator has a psychiatric condition-just as prosecution for murder has proceeded based on circumstantial evidence in several SIDS cases without having to prove that the parent had Munchausen syndrome by proxy. (RICHARD FIRSTMAN & JAMIE TALEN, THE DEATH OF INNOCENTS (Bantam Books, 1998).)

Pediatric condition falsification can include the following forms of deception: actively inducing illness (e.g., injecting the child with toxic amounts of medication to cause seizures); causing *28 a child to bleed out of an intravenous catheter to cause anemia; placing fecal material on a child's incision to cause infection; or administering laxatives to cause diarrhea. It can also include over- or underreporting signs or symptoms in the child, thus creating a false history for the health care provider, or falsifying laboratory specimens, such as a mother who added her own menstrual blood to her child's urine. The presence of a valid illness does not preclude exaggeration or falsification.

In addition to physical condition falsification, psychological or emotional conditions have been fabricated. Examples include children who are presented to the school by the parent as developmentally delayed, as having attention deficit disorder or a psychiatric illness. All of these falsified conditions result in maltreatment by creating a distorted view of the child as impaired. In a 1993 study, Meadow followed a group of mothers who were found guilty of fabricating their children's illnesses and repeatedly subjecting their child(ren) to unneeded sexual abuse examinations. Any unnecessary invasive procedures, medications, hospitalizations, or school absences can constitute emotional and physical abuse to a child.

Profile

Donna Rosenburg described the typical MSBP perpetrator as female (98 percent), articulate, having some health care background, and attentive to the child. (Web of Deceit: A Literature Review of Munchausen by Proxy, 11 CHILD ABUSE AND NEGLECT 547-63 (1987).) It has therefore been difficult to convince a judge or a jury that mothers, particularly mothers who are described as caring and ideal, can harm their children. Thus, many prosecutions have relied on expert testimony regarding the literature documenting “covert” forms of abuse that appear in MSBP, such as injecting with toxic substances, smothering, or infantalizing.

Motivational factors for MSBP offenders include a need for attention from hospital staffs, doctors, and family members; the feeling of power that comes with knowing what is wrong with the child while medical experts remain baffled; a fear of going home from the hospital; or a fear of losing their position at the center of attention. Several documented cases involve an offender who is praised for saving a child then recreating that euphoria by fabricating subsequent incidents of abuse and revival of the victim. Perpetrators crave the attention and sympathy they receive from others through caring for a chronically or seriously ill child.

MSBP perpetrators are defined as caretakers who place their child victims at risk for death, disfigurement, invalidism, and impairment of psychological and social development by securing unnecessary medical interventions. Kathryn Artingstall provided a profile of MSBP offenders in the article “Munchausen Syndrome by Proxy.” (64 FBI LAW ENFORCEMENT BULLETIN 5 (1995).) They are most often biological mothers of the victims; they are often upper- class, well-educated persons; they remain uncharacteristically calm in view of the victim's perplexing medical symptoms; they welcome medical tests that are painful to the child; they praise medical staffs excessively; they appear to be very knowledgeable about the victim's illness; they often have some medical education, either formal or self-initiated study/ experience; they might have a history of the same illness as the victim; they typically shelter their victims from outside activities; they often allow only selected persons close to their children; they maintain a high degree of attentiveness to the victim; and they seem to find emotional satisfaction when the child is hospitalized because of the staff's praise of their apparent ability to be a superior caregiver. Additionally, the mother will often participate in the care of the child at the hospital, often appearing as the doting, perfect mother. Unfortunately, their presence in the hospital often provides perpetrators with just the opportunity they need to commit their crimes.

Herbert Schreier, a psychiatrist at Children's Hospital in Oakland, California, says that most MSBP mothers were themselves neglected, or felt neglected, as youngsters, leaving them unable to love or to feel another person's pain- even their own children's. Furthermore, psychotherapy for MSBP perpetrators is often unsuccessful. (Nina J. Karlin, Munchausen Syndrome by Proxy, 4 BRATTLEBORO RETREAT PSYCHIATRY REVIEW 1 (1995).)

There is also a profile of the child victim. Typically the victim is younger than six years old and not able to verbalize or even realize what is occurring. There is evidence that, as the victim matures, he or she begins to actively participate in the parental deception. The “classic” victim can be described as a child who exhibits one of the more common fabricated symptoms; whose medical history as presented by the mother conflicts with the clinical findings of the child's condition; who often clings dramatically to the parent's overprotectiveness; who demonstrates inappropriate behavior for his or her age; and who learns, as he or she grows older, to treat the symptoms and illness as pre-conditions for his or her mother's love. (Michael Flannery, Munchausen by Proxy: Broadening the Scope of *29 Child Abuse, 28 U. RICH. L. REV. 1175-1200 (1994).)

Due to the extensive harm that MSBP inflicts on its victims, early detection and protection are essential. There are now over 300 published cases of MSBP. (Ayoub & Alexander, supra.) The mortality rate appears to be at least 10 percent, with many cases including younger siblings who died under mysterious circumstances. (Randall Alexander, Wilbur Smith & Richard Stevenson, Serial Munchausen Syndrome by Proxy, 86 PEDIATRICS 581-85 (1991).) MSBP perpetrators may begin or continue MSBP on another child if the first victim dies. The repetitive, compulsive nature of MSBP and the high mortality rate make this one of the more dangerous forms of abuse.

The difficulty of detecting MSBP accounts for these alarmingly high mortality rates among victims. In a 1993 study conducted by Herbert Schreier and Judith Libow (HURTING FOR LOVE: MUNCHAUSEN BY PROXY SYNDROME (New York: Guilford Press)), it took more than six months to diagnose MSBP in 33 percent of the cases; in 19 percent of the cases it took more than a year. Detection is difficult because MSBP often begins while under the supervision of health care providers, and also because “most health professionals do not expect overprotectiveness to manifest itself as child abuse,” according to Tracy Vollaro. (Munchausen by Proxy and Its Evidentiary Problems, 22 HOSFTRA L. REV. 495 (1993).) Once the abuse is detected, doctors and nurses are devastated to learn they have unwittingly participated in a deception. MSBP perpetrators not only deceive the medical community by fabricating the illness, but these perpetrators are very manipulative and convincing. They often become more dangerous when confronted with the possibility that they are causing the child's condition of MSBP, and step up their fabrications in order to prove the doctors wrong. In order to minimize the costs to its victims and to society, MSBP must not only be detected early and its victims protected, but the perpetrators must be prosecuted. It is estimated that MSBP fabrications cost society $40 million annually in unpaid medical bills. (Jacques Wallace, Laboratory Diagnosis of Factitious Disorders, 154 ARCHIVES OF INTERNAL MED. 1690-96 (1994.))

Evidence in Prosecutions

Various types of evidence have been used to prosecute caretakers suspected of MSBP.

Examples include direct evidence (e.g., an eyewitness account of the mother placing blood in a diaper, covert video surveillance of injecting a child, fecal material found in the syringe) and circumstantial evidence (the child is only ill in the mother's presence, the child's urinalysis shows toxic drug levels, or tiny holes are spotted in the child's intravenous tubing and syringes are found in the mother's purse). Another method of proving abuse has been the use of expert witness testimony regarding the Munchausen syndrome by proxy.

(Bernard Kahan & Beatrice Crofts Yorker, Munchausen by Proxy: Clinical Review and Legal Issues, 9 BEHAV. SCI. & LAW 76-83 at 77 (1991).)

Physicians and nurses may testify regarding their direct knowledge of behaviors they observe or they may testify as “experts” in order to explain the unusual presentation of MSBP. As expert witnesses they are often asked to provide an opinion that the defendant meets the diagnostic criteria of having the disorder. (Beatrice Crofts Yorker & Bernard Kahan, The Munchausen by Proxy Form of Child Abuse in the Family Courts, 42 JUV. & FAM. CT. J. 51-58 (1993).) Munchausen syndrome by proxy has been recognized as a diagnosis by appellate courts throughout the United States. (Melissa Searle, Munchausen Syndrome by Proxy: A Guide for California Lawyers, 20 W. ST. U. L. REV. 405-75 (1993).) There is not a specific criminal category of assault called Munchausen syndrome by proxy; however, the charge of murder, manslaughter, assault, child abuse, and even fraudulent procurement of services have all been successfully prosecuted in MSBP cases.

Expert testimony

Expert testimony is not automatically admissible, as there are several hurdles that must be cleared before it can be admitted. First, experts must be qualified according to Federal Rule of Evidence 702 and have sufficient skill, knowledge, or experience in the relevant field so as to render their testimony helpful to the trier of fact in understanding the evidence or in determining a fact in issue. In MSBP cases, expert witnesses ideally are doctors or mental health professionals with some experience with MSBP. Second, the expert testimony must concern an issue that is not within the general knowledge of an average juror. Because the dynamics of child abuse and specifically MSBP are generally not within the knowledge of the average juror, this hurdle should not pose a problem. MSBP testimony has been held admissible and has overcome objections regarding the admissibility of scientific evidence. In People v. Phillips, 175 Cal. Rptr. 703 (Cal. Ct. App. 1981), the defendant asserted that the expert's diagnosis of MSBP was not trustworthy because it was not widely recognized or generally accepted in the medical community. The California appellate court disagreed *30 and stated: “We are aware of no such requirement. We are not confronted with the admissibility of evidence developed by some new scientific technique … nor with conflict within the scientific community.” (Id. at 714.) The court overruled the admissibility objection because the MSBP evidence was not a novel form of evidence. The court also held that MSBP is not an unrecognized illness and is listed in recent editions of the DSM as a category of mental illness. However, in People v. McDonald, 208 Cal. Rptr. 236 (Cal. 1984), the court said that MSBP does not have to pass the admissibility test for scientific evidence. Defense counsel may argue that MSBP is not relevant to show that child abuse actually occurred. In People v. Bledsoe, 681 P.2d 291 (Cal. 1984), the California Supreme Court held that evidence that a victim was suffering from rape trauma syndrome was not admissible for the purpose of proving that a rape occurred. The court stated that “rape trauma syndrome was not devised to determine the ‘truth or accuracy’ of a particular past event-i.e., whether in fact, a rape in the legal sense occurred-but rather was developed by professional rape counselors as a therapeutic tool to help identify, predict, and treat emotional problems experienced by the counselors' clients or patients.” Applying the holding in Bledsoe, it is argued that MSBP testimony cannot be used by the prosecution to show child abuse because MSBP is used by the medical community as a medical/psychiatric diagnosis, not as proof that the mother abused her child.

Prosecutors can counter this argument with testimony that the medical community uses the diagnosis of MSBP not only to treat the perpetrator psychologically, but also to cease unnecessary medical treatment of the victim. Identifying that abuse is the cause of the child's symptoms is paramount to cessation of medical treatment. Therefore, MSBP is relied upon by the medical community to “determine the ‘truth or accuracy’ of a particular past event,” i.e., whether abuse of the child occurred. This diagnosis is relied on by the scientific community not only to identify child abuse, but also to treat the emotional ramifications of the syndrome.

Even if MSBP is not admissible to prove that child abuse occurred, it will most likely be admissible to prove other issues in the case. The second part of the test for admissibility of scientific evidence must then be passed. This part requires that the testimony's usefulness to the jury significantly outweighs the prejudicial impact. A prosecutor who encounters a prejudice objection to MSBP testimony may suggest to the judge that the state will ask the expert to testify only about the general description of the disorder, instead of asking the expert to testify regarding whether this defendant and/or victim suffers from MSBP. This concession by the state may avoid having the expert's testimony entirely excluded, which often excludes the state's sole method of providing the jury with an explanation for this mother's bizarre behavior.

There have been cases in which testimony regarding MSBP has been excluded altogether, and yet the perpetrator was still convicted. In Commonwealth v. Robinson, 565 N.E.2d 1229 (Mass. App. Ct. 1991), the trial court excluded expert testimony on MSBP in a motion in limine, even though a pattern of MSBP was evident. There was no rationale given in the opinion as to why MSBP testimony was excluded.

The facts of the case, however, supported a conviction without expert testimony on MSBP. In Robinson, an 11-month- old boy died due to massive salt intoxication. Evidence showed that the mother had access to large amounts of salt and to the child's formula, both of which were in the hospital's kitchen. Her fingerprints were discovered on the salt packets and there was a baby bottle containing massive amounts of salt among her belongings. She also indicated she knew her child was suffering from salt intoxication before being informed by the medical staff. The Massachusetts appellate court held that the circumstantial evidence presented was sufficient to support a conviction of involuntary manslaughter.

Even though the mother in Robinson was convicted without the use of expert testimony, the circumstantial evidence may not be as conclusive in other cases, or a jury may not believe a mother would intentionally cause her child's illness or lie to a doctor about it. Expert testimony on MSBP is an extremely powerful tool to seal the gaps in the evidence of inexplicable behavior and motivation.

The expert may be the prosecutor's most vital witness, so questioning must be extremely specific. First, the prosecutor should establish the expert's medical training and experience, specifically the expert's experience and training in MSBP. Also, it should be established that the expert is qualified to render a psychological or psychiatric opinion regarding MSBP. Courts vary in their opinion as to whether the expert is required to have actual experience with MSBP. In Phillips, an expert was allowed to testify without having any actual experience regarding MSBP; the expert had merely reviewed the medical literature. The family court in another case gave more weight to the testimony of the physician who had prior experience with MSBP *31 over two other specialists without experience with the disorder. (In re Jessica Z., 515 N.Y.S.2d 370 (Fam. Ct. 1987).) The California court held that the child was abused by MSBP.

Three significant factors determine the admissibility of MSBP testimony: the nature of the testimony, the specific use of the evidence, and the person on whose behalf the testimony is submitted. (Laura Etlinger, Social Science Research in Domestic Violence Law: A Proposal to Focus on Evidentiary Use, 58 ALB. L. REV. 1259 (1995).) The nature of social framework evidence (which includes MSBP) when child victims are involved is viewed favorably by the courts. To date, MSBP testimony has been used by prosecutors against perpetrators in two ways: 1) to describe the profile of the defendant; or 2) to describe the profile of the child under a “battered child syndrome”-type rationale.

Character evidence

Another use of MSBP testimony is to place the perpetrator's character in issue, which can only occur if the defendant places his or her character at issue first. (FED. R. EVID. 404(a)(1).) Often, a defendant offers testimony via a lay witness or an expert witness (e.g., her treating psychologist) to assert that she is not the type of person who would have committed the crime. Thus the defense has “opened the door” for the prosecution to discuss character evidence. In general, character evidence, such as profile testimony, is excluded when offered by the state to show that a defendant acted in conformity with general character traits or prior bad acts unless the defendant has placed her character at issue.

If the defense presents character witnesses, it is important to recognize that the MSBP perpetrator:

presents very well to moist of her family, friends, and associates. This presentation by the defense can prove very damaging if the prosecution does not present MSBP evidence, including evidence that often MSBP perpetrators present themselves very well to the public but there is more beneath the surface. These perpetrators are typically intelligent and appear concerned and caring with their child or children. In short, the perpetrating care-giver appears to be the “perfect mother.”

(Searle, W.ST.U.L.REV. 405B75, supra.)

Character witnesses for the defense often expound on these virtues. Further, because MSBP occurs in seemingly “normal” families, the illusion is created that the defendant's character does not lend itself to the commission of child abuse. Also, if the defendant takes the stand she “will most likely appear very credible and convincing to the trier of fact.” (Id.) MSBP perpetrators often claim to be victims of a ruthless or incompetent medical system.

Because of this ability of typical perpetrators to convince others of their innocence, it is extremely important to rebut the defense's contentions of the “perfect mother and family.” The most effective way to use expert witness testimony to rebut these contentions is to have the expert testify to group character evidence. Group character evidence “attempts to prove that because other persons have acted in certain ways in the past, a defendant who shares common characteristics with those persons is likely to have acted the same way with respect to the crime charged.” (David McCord, Syndromes, Profiles, and Other Exotica: A New Approach to Admissibility of Non-traditional Psychological Evidence in Criminal Cases, 66 OR. L. REV. 19-52 (1987).) “It is crucial for the prosecution to specifically question the Munchausen syndrome by proxy expert regarding the characteristics of a Munchausen syndrome by proxy parent and emphasize to the court that the perpetrating parent almost always presents favorably to medical personnel.” (Searle, supra.) This testimony is presented by a nonexpert character witness who testifies that the defendant exhibits certain characteristics. The expert witness will then testify to the characteristics shared by those who commit the type of crime with which the defendant is charged. Prosecutors should stop short of asking the expert witness to render an opinion that the defendant's character is typical of those who commit these types of crimes. The prosecutor is less likely to encounter such objections as unfair prejudice and improper character evidence, because it is less obvious to the defense when the expert does not directly make a comparison, perhaps, because, as McCord states: “This type of testimony is not immediately recognizable as character testimony.” Expert testimony is most effective to prove motive when the prosecutor has effectively foreclosed all the reasonable explanations for the child's illness. “The finder of fact should be left with only one reasonable explanation for the child's illness: the mother caused it.” (Flannery, supra.)

A criminal case has allowed MSBP testimony to be admissible to prove motive. In State v. Lumbrera, 845 P.2d 609 (Kan. 1992), the state supreme court held that the prosecution had a right to present its theory relative to the motive for the homicide of the defendant's child. Lumbrera involved an appeal of a jury trial conviction of first-degree murder. The facts are as follows. The defendant received a call from the child's babysitter that the four-year-old was vomiting and appeared to have a fever. The defendant took the child to the emergency room presenting symptoms of abdominal *32 pain and vomiting; an antibiotic was prescribed and the child was sent home. The following evening, the hospital received a call from an unidentified woman stating that her son's lips were blue and that he was not moving. The child's lifeless body was admitted to the hospital emergency room and cause of death was determined to be asphyxia by smothering. When the defendant was asked whether she had smothered the child with a pillow, she replied, “It wasn't with a pillow.” The medical records also indicated that the defendant's five other children had died at young ages in Texas and that their deaths were not witnessed. The defendant's conviction was reversed and remanded for a new trial due to cumulative trial errors.

In Lumbrera, the state's theory was that the defendant was “a ‘sympathy junkie’ who derived gratification from being the object of sympathy arising from other peoples' reaction to illness, injury, or the death of her child.” The court stated that the “whole Munchausen testimony was just to establish there was a recognized scientific name afforded such a condition.”

Evidence of modus operandi

As noted, Munchausen perpetrators often continue to abuse other children even after one has died. This repetitive nature can be used to prove modus operandi. Information regarding prior sibling deaths, or of prior suspicious deaths in the presence of a particular babysitter, have been specifically allowed in prosecutions of MSBP, even though such evidence is generally inadmissable in trials. Federal precedent exists “that when the crime is one of infanticide or child abuse, evidence of repeated incidence is especially relevant because it may be the only evidence to prove the crime.” (United States v. Woods, 484 F.2d 127 (4th Cir. 1973).) In that case, the defendant was convicted of assault and first-degree murder of her eight-month-old foster son. The court of appeals held that evidence could be admitted that nine other children who had been in the defendant's custody had suffered at least 20 episodes of cyanosis. Seven of these children died and five experienced multiple episodes of cyanosis.

A second federal court case involving the use of MSBP testimony to show prior bad acts or crimes is U.S. v. Welch, 36 F.3d 1098 (S.D. Ohio 1994). Welch involved a defendant who entered a guilty plea to a charge of second-degree murder. Two children had died in the defendant's care due to SIDS and reflex apnea. A third child suffered a near-death experience and had to be resuscitated. The district court denied the defendant's motion to exclude evidence of the prior children's deaths. After the defendant's motion to exclude was denied, the defendant pled guilty to one count of second- degree murder. Welch shows how evidence of prior bad acts can be a powerful tool.

In a related case, Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court ruled that “when offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant.” In a case in which the defendant was convicted of second-degree murder of his daughter, the Court admitted the “battered child syndrome” evidence to prove the death was the result of an intentional act by someone, and not an accident.

Repeated occurrences of injured children while in the care of the perpetrator is strong evidence that the injuries did not occur by accident. Similarly, it is strong evidence when several children under the supervision of the same caretaker died of the same peculiar illnesses (unless the illness is genetic). MSBP testimony should include evidence of the prior deaths or illnesses, evidence that the illness is not pathological, and evidence that the nature of MSBP is repetitive.

Impact of MSBP testimony

There are four reasons why MSBP testimony is crucial. First, juries need this circumstantial evidence to help them reach a conclusion beyond a reasonable doubt that the alleged crime is a result of child abuse. Juries need MSBP testimony to understand how a

References

The following articles and cases offer additional information on Munchausen Syndrome by Proxy.

  • “Munchausen's Syndrome,” by Richard Asher, in Lancet, i: 339-341 (1951).
  • “Munchausen Syndrome by Proxy: How Should We Weigh Our Options?” by Marie Brady, 18 Law & Psychology Review, 361-65 (1994).
  • Murder Most Rare: The Female Serial Killer Kelleher, Michael D. & C. L. Kelleher. (Praeger: Westport, CT (1998).)
  • “Extreme Munchausen Syndrome by Proxy: The Case for Termination of Parental Rights,” by Robert Kinscherff & Richard Famularo, 40 Juvenile & Family Court Journal 41-53 (1991).
  • “Munchausen Syndrome by Proxy: The Hinterland of Child Abuse,” by Roy Meadow, Lancet, ii: 343-45 (1997).
  • “False Allegations of Abuse and Munchausen Syndrome by Proxy,” by Roy Meadow, 68 Archives of Diseases in Childhood 444-47 (1993).
  • “Liability Associated with Factitious Disorders,” by Beatrice Crofts Yorker, 5 Journal of Nursing Law (4) (1998). seemingly good mother could harm her child in this manner. Expert testimony on social framework evidence such as MSBP is useful to the jury. Few empirical studies exist on the effect of social framework testimony on the jury, but the existing studies indicate that this expert testimony bolsters victim credibility and affects jury verdicts. “For example, one study found that the use of expert testimony in a simulated child sexual abuse case helped eliminate common myths about child sexual abuse and led to more guilty verdicts.” (Etlinger, supra.) Second, MSBP testimony helps not only juries to better understand the nature of the crime involved, *33 judges also need this information when sentencing a defendant, and when making recommendations for counseling or parenting classes. The third reason MSBP testimony is crucial is for its precedential value. (Vollaro, supra.) If a court admits MSBP testimony, other courts will likely allow this testimony as well. In turn, the legal system can better educate itself about this form of child abuse. Fourth, MSBP testimony should be admitted to preserve the record, if the case is appealed. “[T]he higher court will be aware the incident was not just a freak accident but a continuing form of child abuse.” (Id. at 506.) If MSBP testimony is already on the record it can be used by prosecutors if the mother moves to a different jurisdiction and harms another child.

Conclusion

Prosecutors need to be prepared to introduce expert testimony to elucidate the complicated and counter-intuitive dynamics of MSBP child abuse. All disciplines, including criminal justice professionals, need to be aware that an interdisciplinary panel of experts published a consensus paper that suggests separating the abuse, pediatric condition falsification, from the motive, MSBP. Although direct evidence is most useful, circumstantial evidence of intentionally causing illness has been persuasive in many successful prosecutions. Until the public understands the unusual dynamics of illness falsification, and covert forms of victimization, the use of experts will be necessary in most cases.

Footnotes

a1 Lynn Holland Goldman is a graduate of the University of Georgia Law School and a former child protective services worker with the Georgia Department of Family and Children's Services. She is currently employed by the Atlanta Legal Aid Society as a staff lawyer. Beatrice Crofts Yorker, who holds a law degree, is an associate professor of nursing at Georgia State University. She is a member of the American Professional Society on the Abuse of Children (APSAC) Task Force on MSBP and has published on the legal issues of covert video surveillance of Munchausen Syndrome by Proxy.

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