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II. MSBP in the early 1990s—Questions but Reaffirmation [Third Essay]
1. Child Abuse Reporting and Immunity
In order to flesh out these “complications,” mentioned at the end of the previous essay, I need to trace for a moment the contours of the ideology or spirit “in the air” in the 1970s and 1980s which would have allowed the rampant and seemingly uncritical growth of a diagnosis of MSBP when it rested on such flimsy definitional and empirical grounds. In a word, it was the entry of child abuse and neglect into our vocabulary and collective focus. The phrase “battered child syndrome” first entered medical vocabulary in 1962; by 1965 the first legal cases had appropriated the term. Rather than being content with a psychological “syndrome” and its manifestations, however, state lawmakers decided to take the concept of the “battered child,” as s/he was known, and provide statutory protections for children and punishments against those who “battered” or neglected children. By the late 1970s, each state had in place a fledgling child abuse statute which would aid state authorities in identifying the abuse, protecting the child, giving immunity to reporters of child abuse, and punishing those who perpetrated the abuse. These statutes would be revised and enhanced in the 1980s and 1990s. At the heart of these statutes was a definition of child abuse or neglect, which invariably had the following two features: (1) an act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or (2) an act or failure to act which presents an imminent risk of serious harm. (29)
(29) This definition is taken from the 2003 Federal Child Abuse Prevention and Treatment Act (CAPTA; 42 USC sec. 5106g), which mimics many state statutes.
Two features of child abuse legislation that are important to understand in the context of MSBP are the “reporting requirement” and the notion of “immunity from prosecution.” Each state has a provision in the child abuse law requiring certain professions to report actual or suspected child abuse to appropriate authorities (usually child protection services of the state). The philosophy behind “mandatory reporter” statutes is that certain professions that normally have extensive contact with children should be aware of the signs of suspected child abuse and, for the sake of the child, be required to report what they see. The following professions are “mandatory reporters” in most states: (1) social workers; (2) teachers and other school personnel; (3) physicians and other health-care workers; (4) mental health professionals; (5) childcare providers; (6) medical examiners; (7) law enforcement officers. As time has gone on, the list of mandatory reporters has grown; in some states the list includes far more people than this. The point to notice, however, is that each state from the very beginning had a provision requiring physicians and other health-care workers to report suspected child abuse to appropriate authorities. In what circumstances is this report necessary? Again, the precise requirements vary from state to state, but as one web site says, “typically, a report must be made when the reporter, in his or her official capacity, suspects or has reasons to believe that a child has been abused or neglected. Another standard frequently used is when the reporter has knowledge of, or observes a child being subject to, conditions that would reasonably result in harm to the child.” (30)
(30) A general Internet search on "reporting requirements" and "child abuse statutes" will get you this information. I visited one such site on May 9, 2008 to get this quotation.
As one soon discovers when dealing with legal concepts, basic definitions embrangle you in ever-deeper and more complex spirals of further questions which end up, sometimes, forcing you to go to law school. Since most “mandatory reporters,” or even “permissive reporters,” don’t have that interest or luxury, they must make an “educated guess” regarding what “suspicion” of child abuse is and act on those suspicions. And, since the concept of suspicion is “frozen” in statutory form, it justifies intervention even when surmise, uncertainty, conflicting data or even whim may be at work.
But child abuse reporting requirements wouldn’t really have “teeth” unless those required to report suspected or actual abuse are protected from prosecution in making reports. That is the purpose of “immunity from prosecution” portions of the child abuse statutes. All states provide some form of immunity from liability for persons who in good faith report suspected instances of child abuse or neglect under the reporting laws. In a word, immunity statutes protect reporters from both civil and criminal liability that they might otherwise incur (such as through violation of libel or slander laws). But “good faith” in law is as hard to pin down as “terrorism” in political science. In its most general form, “good faith” refers to the assumption that a reporter, to the best of his/her knowledge, has reason to believe that neglect or abuse has occurred. Even if the allegations are not substantiated or, more chillingly, even if children are removed from homes and parents are further punished by the judicial system upon a report that later turns out to have been erroneous, the reporter is still provided with immunity.
State laws on immunity differ, and this isn’t the place to comb the various statutes. Most common is a provision that extends immunity not only to a reporter of suspected child abuse but also to that individual in subsequent judicial proceedings, if s/he acts as a consultant or witness. The thought behind the immunity statutes is that if we are requiring people to come forward with information on child abuse, to “stick their necks out,” as it were, we have also to be willing to provide them protections so that they will be willing to comply with the reporting law.
On first glance we can recognize the virtue of this kind of law. Indeed, if you have a plague or an epidemic, or a dangerous criminal in your midst, you want to encourage all people to do whatever they can to rid the land of the scourge. Thus, mandatory reporting and immunity statutes are designed to provide the necessary incentives to end the danger. That these rather impressive defensive battlements can also be used to lob dangerous explosives into the camp of innocent people is one of the “downsides” of this legislation. But, the spirit of the 1970s and 1980s was such that we were willing to face the substantial risk of false accusation in order to make sure that we identified and eliminated the child abuser from our midst.
2. Two Troublesome Legal Cases
Yet, as Chinua Achebe reminds us, things fall apart. (31) Two legal cases, which are more illustrative of problems with MSBP than unique instances, show how laws that were originally meant to protect children went horribly awry when allegations of MSBP were thrown into the mix. The first concerns the Stallings family of St. Louis, MO. (32) In July 1989, five-month-old Ryan Stallings spent two weeks in a hospital after suffering abdominal pains—the diagnosis was severe metabolic acidosis of ethylene glycol (radiator antifreeze). Since his mother took him to the hospital in St. Louis which had expertise in poison issues, deliberate poisoning was suspected. Child Protective Services was notified, a suspicion of MSBP was voiced by social workers, and Ryan was whisked away to a foster home. His parents were granted one hour of supervised visitation per month. Four days after one of the parental visits, Ryan became acutely ill and was taken to the same hospital where he was originally treated. His metabolic acidosis was even more pronounced than previously, and once again ethylene glycol poisoning was diagnosed. Ryan then died in September 1989. A search of the Stallings’ home discovered a half empty container of antifreeze. Patricia Stallings, who was five months pregnant with her second son, was arrested, charged with murder and imprisoned. Two months after the second son’s birth, while she was still incarcerated, he became acutely ill and was admitted to Children’s Hospital, a different hospital than the one which treated his brother. He, too, was found to be acutely acidotic with respiratory illness, symptoms identical to his deceased brother. Yet close laboratory tests on the second brother revealed that he was not suffering from ethylene glycol poisoning but had a rare metabolic error called “methylmalonic acidemia.”
(31) Chinua Achebe's 1958 novel, Things Fall Apart, describes the corrosive influence of English colonialism and Christian missionaries on the Igbo (Ibo) people of Nigeria in the late nineteenth and early twentieth centuries.
(32) This summary is derived from many sources, among them Michael Flannery's article, "Munchausen Syndrome by Proxy: Broadening the Scope of Child Abuse," 28 U of Richmond Law Review (1994), pp. 1175ff.
Despite the evidence that Ryan’s brother suffered from a rare genetic disorder that yielded chemicals in the blood quite similar to those found in Ryan, prosecutors brought Mrs. Stallings to trial. Though she was described as a “very loving mother” who loved to care for her baby, the circumstantial evidence of antifreeze poisoning, combined with the half-full can of antifreeze in the garage, convinced the jury that she had murdered her child, and she was sentenced to life imprisonment as a result. Several months later, however, chemists from St. Louis University became interested in the case and retested frozen samples of Ryan Stallings’ blood. They concluded that the original lab tests yielded incorrect results and, in fact, Ryan had died from the same genetic disease that afflicted his brother. On Sept. 20, 1991 prosecutors then came forward to dismiss all charges against Patricia Stallings, after she had lost her first son and had spent fourteen months in prison.
Though this case is fascinating in the medical profession to illustrate the phenomenon known as “context” or “expectation” effect, where there is the tendency to interpret data in a manner consistent with expectations or prior theories, it also can be seen as a case where MSBP provided the added nudge, when evidence was only circumstantial, quickly to remove the child from the home and then permit the filing of charges against the mother. The effect of an allegation of MSBP is thus, often, to freeze or stop an investigation rather than to pursue it in more detail to see if the surmise was justified.
If the Stallings case illustrates how a shadowy suspicion of MSBP can, combined with other factors, lead to murder charges, conviction and false imprisonment, the Gustafson case from Washington State shows how mental health professionals are immune from repercussions following from their diagnoses of MSBP, even if they later retract their diagnoses after the harm has been done. (33) Here are the relevant facts of the case. In Sept. 1996 Margrett Gustafson and Michael Baker, husband and wife, engaged in a custody dispute over their daughter Maddison. Maddison’s guardian ad litem determined that psychological examinations of the three would help her recommend a primary residential parent for Maddison. A clinical psychologist, Dr. Irene Mazer, whose role was to administer psychological tests, conduct interviews and report her findings, was retained for the job.
(33) The case is Gustafson v Mazer, 54 P3d 743 (Wash. App. 2002).
Maddison’s guardian notified the psychologist that Gustafson appeared to have caused illnesses in Maddison in order to maintain the position of an excellent caregiver. As will be shown below, this type of language is taken from the literature of MSBP in the 1990s, culminating in the DSM-IV’s designation of the syndrome as one to be further studied. Similarly, the father accused Gustafson of subjecting Maddison to unnecessary medical treatments. These allegations, as we know, are part and parcel of the MSBP allegation. Indeed, when Gustafson met with Dr. Mazer, she said that her husband accused her of having MSBP. (34)
(34) Ibid., p. 744.
Dr. Mazer had no previous experience with MSBP, but she decided to do what any competent psychologist would do. She read some Internet articles on it and read several medical articles, reviewed Maddison’s medical records (which showed that Maddison had seen a dozen doctors in three years), and consulted with some MSBP experts. Heedless of the warnings given her by the “experts,” to the effect that she should not try to make such a diagnosis if she lacked adequate training or experience, Dr Mazer said in her report that there was “reasonable case to suspect that Gustafson suffered from MSBP.”
Alea iacta est—“the die was cast.” Once MSBP was mentioned by a professional, things came to a screeching halt. Or, better said, the guardian ad litem had Dr. Mazer put her diagnosis in a memorandum for Maddison’s custody hearing. On November 12, 1996 the court granted transfer of custody of Maddison to the father; the Spokane Police Department went to Gustafson’s home to remove Maddison. Over the next several months several things happened in the case, but finally in June 1997 Dr. Mazer submitted another psychological report on Gustafson and Baker, concluding that her allegations of MSBP were unsubstantiated.
Gustafson, understandably enraged, sued Dr. Mazer in state superior court on theories of negligence and defamation in Mazer’s preparation of the erroneous report alleging Gustafson had MSBP. The court dismissed her suit, holding that the psychologist was entitled to witness immunity under Washington law. On appeal, the court affirmed, saying that under the Bruce case in Washington absolute immunity from prosecution is afforded to expert witnesses not only in their testimony but “also [in] acts and communications which occur in connection with the preparation of that testimony.” (35) Hence, Mrs. Gustafson’s suit was not allowed to proceed.
(35) Ibid., p. 745, citing Bruce v Byrne-Stevens & Assocs., 776 P2d at 666.
These two cases illustrate at least four factors which the legal system ought to recognize as encouraging irresponsible and terribly harmful allegations of MSBP. First is the problem of who can diagnose MSBP. In Stallings the suspicion was voiced by a social worker; in Gustafson it was by a clinical psychologist with no training in MSBP. Other cases have suspicions of MSBP made by disgruntled spouses or ex-spouses, teachers, pediatricians or a whole host of people that is even broader than the list of mandatory reporters in the child abuse statutes. Because the allegations of MSBP can come from so many sources, with such immediate and dramatic consequences, one is more correct to see it as a vague label attached to a person rather than a clinical diagnosis in the traditional sense. Thus, it functions sort of as a rumor with consequences, a not-so-firmly stitched “A” to the dress of the distressed mother. (36) The fact that Dr. Mazer felt she could make a diagnosis of MSBP by reading a few articles and talking with a few other professionals goes back to the first diagnosis in law of MSBP, made by the aforementioned Dr. Blinder who, on the basis of a few articles read, described with confidence this new “syndrome.” Yet it obviously exposes the Achilles heel of the diagnosis, too. If almost anyone can diagnose it, then we are left with gobbledygook, pure and simple.
(36) Referring, of course, to Nathaniel Hawthorne's description of the garment of Hester Prynne, who took exquisite an sensual care in shaping the "A", standing for "adulteress," which she had to pin to her dress in The Scarlet Letter.
Second, these cases illustrate the problem of when MSBP should be diagnosed. Is it something that is a label that aids in voicing a suspicion or is it a diagnosis that can only be made after examination of the mother, medical records of the child and interviews with attending physicians? That is, is MSBP a sort of preliminary suspicion or a considered conclusion? If it is both, it really is nothing. Or, if it is a preliminary suspicion, is it subject then to a battery of serious tests, like any other medical procedure, to try to differentiate it from a variety of competing “syndromes”? Because this fundamental question also is unanswered, MSBP can serve as a sort of roving trump card, to be played by anyone at any time in any proceeding, to bring it to a screeching halt and then remove the child from parental guidance and control.
Third, these cases illustrate the problem of the basis on which such a conclusion, or hypothesis, of MSBP is made. In short, what are they? And, when, along the way, can such a diagnosis be made? Finally, we see a problem with immunity, described above. While many people will use the reality of immunity to encourage them to act responsibly and report boldly when they might have otherwise been reluctant to report suspected child abuse, many other people (as is evident in the case of Dr. Mazer) can use immunity as a shield to hide behind, a sort of prophylactic against incompetence and irresponsibility. As a result, the true losers in these cases are families and children. Mrs. Gustafson was accused of MSBP by a disgruntled spouse. A compliant psychologist, catching the popular Zeitgeist that anyone can diagnose MSBP, blithely suggested it in her report. The judge, probably a hard-working and diligent but overworked public servant not especially trained in psychological theories, went along with the “expert’s opinion.” MSPB, then, was used to add to, rather than to reduce, the net calculus of pain suffered in the Gustafson/Baker family. Any responsible investigator of MSBP would conclude that allegations and use of the diagnosis were completely out of control by the mid-1990s.