ToaKraka
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User ID: 108
ToaKraka
Dislikes you
4hr ago
That quote is from the dissent. "Susceptibility of the minor to the defendant's possible manipulation and control" is not an actual standard that has been used in any cases. The text of the law criminalizes merely "persuading, inducing, enticing, or coercing any individual who has not attained the age of 18 years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense".
ToaKraka
Dislikes you
7hr ago
I forgot to copy some text that clarifies the dissenter's viewpoint here. (The paragraph was cut in half by a page break.)
This approach also fails to take into account that the minor may experience objective physical pain, emotional suffering, or humiliation immediately after or in the minutes, hours, or days following the sexual misconduct depicted in the material. This approach excludes all outside circumstances, even though those circumstances may illuminate whether the sexual misconduct depicted in the material caused the minor to experience objective physical or mental pain and suffering.
Also:
Certainly, the majority’s approach cannot accurately capture the feelings or mental state of a minor through the confined frame of an isolated image or video.[1]
Although the depiction in the material is relevant to the inquiry, the court’s focus should not be so narrow. Rather than confine the court’s inquiry to the image or video and focus on the victim’s appearance and reaction as portrayed in the visual media, the court should consider all relevant circumstances and ultimately focus on the defendant’s conduct.[2] The court’s inquiry should include the course of conduct between the defendant and the minor, the events leading up to and after the footage, and the susceptibility of the minor to the defendant’s possible manipulation and control, as those considerations yield a more accurate determination of whether a minor may have experienced objective physical pain, emotional suffering, or humiliation due to the events depicted in the material.
[1]Parenthetically, this problem is exemplified in the media by teenage Virginia Giuffre, who appears to be smiling and happy in pictures with then Prince Andrew, despite her alleging that he subjected her to extreme sexual abuse.
[2]Indeed, in other areas of the Sentencing Guidelines, we have emphasized that the "focus of the inquiry is on the defendant’s action, not the victim’s reaction".
Excerpt from a court opinion:
The trial judge stated at sentencing [on December 16, 2022]:
I am considering the sentencing guidelines. I will also consider the fact that you did have a waiver trial, and I will grant you some mitigation with that. I thoroughly reviewed the Presentence investigation report, my notes on the testimony from the trial, the testimony that's been presented here today at the sentencing, from both [the victim, a previous romantic partner of Appellant and the mother of a ten-year-old child with him,] and [Appellant's current paramour,] as well as your allocution and the arguments of counsel.
On December 20, 2022, Appellant timely filed a post-sentence motion requesting reconsideration of his sentence. Appellant acknowledged that the court had sentenced him at the bottom end of the mitigated guidelines, but he indicated that he had been nervous and had not appropriately articulated his remorse in his allocution. Appellant also requested the opportunity to present additional testimony from some of his children's mothers regarding the ways in which his incarceration would affect their lives financially and emotionally. On April 19, 2023, the court denied Appellant's motion by operation of law. Appellant did not file a direct appeal.
Court saga:
A 20-year-old man (diagnosed with ADHD and "autism spectrum disorder", employed by UPS under a special program) meets a 12-year-old girl (claiming to be 13) on Snapchat. Within a month, their conversations become sexual. Among other things, the man directs the girl to record a video of herself masturbating with a marker.
Five months in, as part of a different child-exploitation investigation, the girl is interviewed by FBI agents, and she also discloses this situation. The agents take control of the girl's Snapchat account, entice the man to meet the girl at a state fair with condoms in the expectation of having sex there, arrest him, and charge him with six crimes. He pleads guilty to three of them, and the other three are dismissed.
For sentencing purposes, the marker video is counted as production of child pornography with an enhancement for "material that portrays sadistic or masochistic conduct", which increases the total sentencing range by 55 percent (from 14–18 years to 22–27 years) under the sentencing guidelines. The defendant objects to this characterization, but the trial judge rejects the objection. It is circuit precedent that child pornography that "would cause an objective viewer to believe that the pictured activity is inflicting physical pain, emotional suffering, or humiliation on the minor" is sadistic or masochistic. "It is common sense that images of a middle- and high-school-aged girl inserting foreign objects into her private parts are sadistic. At minimum, such conduct is objectively humiliating." The trial judge varies downward from the sentencing range by three years to account for the defendant's youth and immaturity, but refuses to vary further based on his diagnoses. The final sentence is 19 years in prison (plus 25 years of supervised release).
The appeals panel vacates and remands.
For depictions involving prepubescent minors, all penetrative activity is inherently sadistic and alone justifies the enhancement. But, for depictions involving pubescent minors [such as the victim in this case], sexual penetration is not by itself enough. The district court must instead find, within the material's four corners, other visible and objective markers of physical pain, emotional suffering, or humiliation. Those markers can take different forms, like bondage, urination, humiliating costumes or positions, penetration with large or sharp objects, facial expressions denoting distress, or body language suggesting discomfort. But, without more indicating pain or humiliation, the depiction of pubescent minors engaged in penetrative sexual activity alone cannot justify the enhancement.
One judge on the three-judge panel dissents.
The majority contends that, since the parties agree that [the victim] was not prepubescent at the time of the video, the first avenue for application of the sadism enhancement is foreclosed. But the parties' agreement or concession on an issue is not dispositive, and it does not end our inquiry. As noted by the majority, the government "concedes" that the video shows that [the victim] has "fully-developed breasts and pubic hair", and [the defendant] describes [the victim] as "almost adult-appearing". But several other characteristics, in addition to physical ones, inform the inquiry into prepubescence. For this issue, we should not rely on the conclusions of attorneys, who presumably lack the requisite medical expertise or specialized training and experience to evaluate accurately whether a minor is prepubescent. That determination is more appropriately suited to a qualified medical expert, rather than an attorney or judge. Moreover, that determination is certainly inappropriate for an attorney or judge to make based solely on a minor's appearance as reproduced in an image or video.
As to the second avenue for application of the sadism enhancement, the majority focuses exclusively on the "four corners of the image" depicting the sexual misconduct. In particular, the majority emphasizes the minor's facial expressions and body language to discern whether the minor objectively experienced physical pain, emotional suffering, or humiliation during the sexual misconduct. To this point, the majority highlights that the government "acknowledges there is no point in the video in which the expression on [the victim]'s face is particularly pained", and that [the defendant] states that [the victim]'s "body does not flinch or recoil as she masturbates".
But this emphasis on the visible appearance and reaction of the victim in the material is wholly speculative and unreliable. The majority's approach requires the court to evaluate a victim's reaction while the victim is in the throes of adverse circumstances. This approach assumes that a minor's apparent facial expressions and body language in an isolated and contrived image or video accurately reflect the minor's objective experience, but that assumption defies common sense. This approach fails to take into account that the minor may pretend to tolerate the defendant's treatment or appear comfortable in the image or video to appease the defendant, which often may be the case, or because of the defendant's threats or manipulation. This approach also fails to take into account that the minor may experience objective physical pain, emotional suffering, or humiliation immediately after or in the minutes, hours, or days following the sexual misconduct depicted in the material. This approach excludes all outside circumstances, even though those circumstances may illuminate whether the sexual misconduct depicted in the material caused the minor to experience objective physical or mental pain and suffering.
The burden should not be on the victim to convey to the court in her image or video that sexual misconduct with minors involves objective pain, emotional suffering, or humiliation. Rather, the burden should be on the defendant to prove otherwise. Common sense and human experience inform such an approach.
ToaKraka
Dislikes you
22hr ago
Once this hit the media, however, the appalled reaction by many in the mainstream was that the eggheads were arguing that we should teach Black English in schools. Which was not, to my very clear memory of the time, what anyone was actually arguing.
This slippery slope should not be totally written off. Creoles have been made co-official languages by a few Caribbean governments (Haiti and the Dutch "constituent countries" of Aruba and Curaçao), and politicians have seriously proposed doing the same in the most populated Anglophone Caribbean country, Jamaica.
ToaKraka
Dislikes you
1d ago
During this holiday season, are you interacting with any far-flung relatives who speak strange creoles/patoises/pidgins of your language? Do you think that such modes of speech should be considered proper languages in which their inhabitants can take pride, or merely disgusting bastardized dialects suitable only for reassimilation into the mother tongue? As a USAian with several relatives (mostly from Trinidad and St. Croix) who speak English with a very thick accent, and at least one (IIRC, from Antigua) who probably can be considered a speaker of creole rather than of English proper, I am inclined toward the latter opinion.
(I'm putting this in the Thursday thread rather than in the Friday thread because it seems like a culture-war topic. See, e. g., the laughs that /pol/ extracted from BBC Pidgin a while ago.)
ToaKraka
Dislikes you
2d ago
In 1972, when the National Institutes of Health introduced the National High Blood Pressure Education Program to help prevent hypertension, no meaningful experiments had yet been done. The best evidence on the connection between salt and hypertension came from two pieces of research. One was the observation that populations that ate little salt had virtually no hypertension. But those populations didn’t eat a lot of things—sugar, for instance—and any one of those could have been the causal factor. The second was a strain of “salt-sensitive” rats that reliably developed hypertension on a high-salt diet. The catch was that “high salt” to these rats was 60 times more than what the average American consumes.
Still, the program was founded to help prevent hypertension, and prevention programs require preventive measures to recommend. Eating less salt seemed to be the only available option at the time, short of losing weight. Although researchers quietly acknowledged that the data were “inconclusive and contradictory” or “inconsistent and contradictory”—two quotes from the cardiologist Jeremiah Stamler, a leading proponent of the eat-less-salt campaign, in 1967 and 1981—publicly, the link between salt and blood pressure was upgraded from hypothesis to fact.
In the years since, the NIH has spent enormous sums of money on studies to test the hypothesis, and those studies have singularly failed to make the evidence any more conclusive. Instead, the organizations advocating salt restriction today—the USDA, the Institute of Medicine, the CDC and the NIH—all essentially rely on the results from a 30-day trial of salt, the 2001 DASH-Sodium study. It suggested that eating significantly less salt would modestly lower blood pressure; it said nothing about whether this would reduce hypertension, prevent heart disease or lengthen life.
While influential, that trial was just one of many. When researchers have looked at all the relevant trials and tried to make sense of them, they’ve continued to support Dr. Stamler’s “inconsistent and contradictory” assessment. Last year, two such “meta-analyses” were published by the Cochrane Collaboration, an international nonprofit organization founded to conduct unbiased reviews of medical evidence. The first of the two reviews concluded that cutting back “the amount of salt eaten reduces blood pressure, but there is insufficient evidence to confirm the predicted reductions in people dying prematurely or suffering cardiovascular disease.” The second concluded that “we do not know if low salt diets improve or worsen health outcomes.”
The idea that eating less salt can worsen health outcomes may sound bizarre, but it also has biological plausibility and is celebrating its 40th anniversary this year, too. A 1972 paper in The New England Journal of Medicine reported that the less salt people ate, the higher their levels of a substance secreted by the kidneys, called renin, which set off a physiological cascade of events that seemed to end with an increased risk of heart disease. In this scenario: eat less salt, secrete more renin, get heart disease, die prematurely.
With nearly everyone focused on the supposed benefits of salt restriction, little research was done to look at the potential dangers. But four years ago, Italian researchers began publishing the results from a series of clinical trials, all of which reported that, among patients with heart failure, reducing salt consumption increased the risk of death.
ToaKraka
Dislikes you
2d ago
Do you have similar issues with other USB devices in the same physical ports? Keyboards, mice, USB thumb drives, especially anything with higher power draw or running in faster USB modes? Or is it just controllers, nothing else?
I haven't had any problems with other USB devices (including the aforementioned first-party controller), even in the same ports. (Possibly relevant: The first-party controller uses a USB A to Micro-A cable, while the two third-party controllers use USB A to C cables. But I've connected phones and GoPro cameras with USB A to C cables previously without problems.)
check for BIOS updates from the manufacturer
It appears that my AMD motherboard had USB problems that were fixed by BIOS updates around year 2021. I already was using a 2022 BIOS version, and now have updated it to the latest non-beta version from year 2024. This did not fix the problem.
It's a bit of a Hail Mary, but try unplugging the connection from the motherboard to the front-side panel.
This did not fix the problem.
PCIe expansion cards are cheap as another try if you've got the available slots
I guess I have no other option.
ToaKraka
Dislikes you
2d ago
Are you seeing anything change in Device Manager when you plug in or unplug the controllers? If there are changes, set up an event manager filter to track down what they are.
When I plug in the controller, I hear a "USB connected" sound, and then every five seconds on loop a "USB disconnected" sound. After every "USB disconnected" sound, Device Manager does an update flash as if something changed, and a "USB device connected" icon appears for a split second in the Taskbar. But following the procedure laid out in the linked Reddit post does not cause Event Viewer to show any Kernel-PnP or Kernel-Pnp-Rundown events corresponding to these happenings.
If it's a desktop, switching to different USB ports or to a PCI(E) motherboard might be a cheap way to get back up and running.
The problem occurs regardless of whether I use a front USB port (belonging to the case, connected indirectly to the motherboard) or a rear USB port (belonging directly to the motherboard).
ToaKraka
Dislikes you
2d ago
>Xbox One controller that I use with my Windows 10 computer stops working (switch under right bumper is broken)
>Buy 8BitDo Ultimate Wired Controller for Xbox
>Windows doesn't recognize it
>Troubleshoot with 8BitDo support
>The controller works on my mother's computer but not on mine, indicating a driver problem
>8BitDo support gives me a driver to install
>It doesn't fix the problem
>8BitDo's spam filter blocks my messages when I try to continue the support conversation
>Manually deleting the three driver files associated with the controller doesn't fix the problem
>Okay, fine. I initiate the return process for the 8BitDo controller and get a GameSir G7 SE controller instead
>Windows doesn't recognize that controller either
>I throw up my hands, cancel the return process for the 8BitDo controller, and completely reinstall Windows
>The problem still has not been fixed
Obviously, @orthoxerox has used his ineffable psychic powers to make my computer incompatible with controllers, specifically to force me to play with mouse and keyboard.
It depends on the game. Yes, in Gundam Battle Operation 2 or Nioh you will need to have a very quick right thumb in order to switch between weapons/stances and to dodge enemy attacks. But IIRC Death Stranding is significantly more slow-paced, even during its (rather annoying) boss fights—it puts the action into slow motion while you have the weapon-select menu open, and its combat does not involve split-second dodge-rolling. And Metaphor Refantazio obviously is not an action game at all.
Also: Nowadays, some controllers have two or four extra buttons on the back. These can receive custom remappings in order to duplicate face-button functions, shifting load from the player's right thumb to his middle fingers (and his brain, to remember which back buttons have been remapped to which face buttons, since the game will still give face-button prompts).
ToaKraka
Dislikes you
4d ago
A Wikipedia article is not necessarily a good source for such a right-wing topic.
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Overall: 10 percent
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Real-time strategy games: Less than 1 percent
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First-person shooter games: 7 to 8 percent
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Third-person adventure games: 40 to 50 percent
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Sports and fighting games: More than 70 percent
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Racing and skating games: More than 90 percent
Those numbers are from year 2021. As of 2024, the "overall" figure has increased from 10 percent to 15 percent, but Steam has not seen fit to provide per-genre numbers again.
I personally played Death Stranding 1 with a controller. And I have seen several 4chan threads laughing at people who try to play action RPGs like Dark Souls and Nioh with mouse and keyboard, fail, and leave bad reviews on that basis.
ToaKraka
Dislikes you
5d ago
we will also have to keep private equity and some other over capitalized entities out of residential housing
Or just make local zoning less restrictive so that more housing can be built.
ToaKraka
Dislikes you
5d ago
There is no need for an outright ban. In the absence of government subsidies, the 30-year mortgage is not "abolished"—it withers away. Quote from Hidden in Plain Sight chapter 4:
After the speculative boom of the late 1920s, in which mortgages with LTV (loan-to-value) ratios of 100 percent were not uncommon, the Great Depression produced excessively conservative lending policies by the banks that had been the primary sources of housing finance. At the time, there were no national markets for mortgages, many local and regional differences in mortgage terms, very low LTV ratios of 50 to 60 percent, and a homeownership rate of less than 44 percent. Mortgages tended to be relatively short-term, with bullet payments at the end. If a mortgage could not be refinanced at the end of its term—and many in the Depression could not be—it was foreclosed.
The US government's direct involvement in housing finance began in 1934 with the creation of the FHA (Federal Housing Administration), which had the authority to insure mortgages for up to 100 percent of the loan amount. By providing a government guarantee, the FHA was intended to overcome the reluctance of banks and others to make long-term mortgage loans. Over time, the FHA had a major role in standardizing mortgage terms, increasing acceptable LTV ratios to approximately 80 percent, and encouraging the development of mortgages that amortized over multiyear periods. In 1934, FHA-insured loans had a maximum LTV ratio of 80 percent and a maximum loan term of 20 years. A 1936 FHA underwriting manual shows that, in addition, FHA underwriters wanted to see a good or excellent credit record and a relatively low debt-to-income ratio that took into account the borrower's residual income (remaining income after taxes, household costs, and outstanding debts). Because of these strict underwriting standards, the FHA's record for the next twenty years—through the Great Depression, World War II, and the post-war housing boom—was exemplary: defaults on FHA mortgages remained well under 1 percent.
ToaKraka
Dislikes you
5d ago
I loved the originality of Death Stranding but hated the gameplay loop.
Hated the controls of Metaphor Refantazio so much I refused to play it.
You should include a disclaimer that you played with mouse and keyboard rather than with controller, so your experience may be highly unreflective of others'.
ToaKraka
Dislikes you
5d ago
I vote for Death Stranding 1. I played it for over 250 hours and didn't even get around to finishing it.
One Latin dictionary lists "domucula", "domuncula", and "domuscula" as diminutives of "domus" ("house"; only "domuncula" has any examples found by the same website in texts), but does not provide any augmentatives. Romanuli ite domunculam?
If your French is not sufficient
AP article on the ICC prosecutors who have received the same treatment
EU page explaining the "blocking statute" that the judge wants the EU to implement in order to prevent EU companies from obeying US sanctions
ToaKraka
Dislikes you
7d ago
It looks like Frank did demand court costs in his complaint. But costs are mentioned in neither the trial judge's opinion nor the appeals panel's opinion, so I assume that these costs (and Frank's entitlement to them) will not be determined until after the appeals process has concluded.
ToaKraka
Dislikes you
7d ago
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In year 1985, on a dead-end street that terminates at a beach, two properties are created*, one on the beachfront at the end of the street and another with the first property between it and the beach. The beachfront property is encumbered with a restrictive covenant forbidding any construction or landscaping taller than four feet in the rear 40 percent of the lot, "specifically imposed for the benefit of" the non-beachfront property. In year 2002, the federal and state governments obstruct the ocean view with a tall dune in order to mitigate erosion.
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In year 2015, Frank buys the non-beachfront property for 5.2 megadollars. In year 2018, John buys the beachfront property for 5.3 megadollars (outbidding Frank, who also wants to buy it). John demolishes the existing beachfront house and builds a new one. But the new house's landscaping includes trees taller than four feet in the restricted area, so Frank sues John to force him to prune the trees down to four feet.
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In court, John argues that the restrictive covenant is superfluous because the ocean view that it was intended to preserve for the non-beachfront property no longer exists. But the trial judge rejects this argument, and the appeals panel affirms. The restrictive covenant is unambiguous, and it is not unreasonable to interpret it as intended to preserve the non-beachfront property's view, not just of the ocean, but also of "the scenic dunes and beachscape that surrounds it".
*Insert Georgism joke about how land cannot be created. Insert Nederland joke about how land can be created.
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A woman reports to the police that a man has trespassed in her house and fallen asleep there. The responding police officers are familiar with the trespasser, and note that his car is parked outside the house, with the key and a bunch of cash plainly visible through the car's windows.
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The officers arrest the trespasser and bring him to the police station, which is just three blocks away from the house. The officers note that the trespasser appears drunk, but do not think that there is enough evidence to additionally charge him with driving to the house while drunk. The officers remind the trespasser that he's too intoxicated to drive legally, offer to drive him home, warn him that his car is presenting an enticing target to thieves, and suggest that he call someone to drive the car away. The trespasser assures the officers that he will get picked up by someone else, and tells them that he won't bother to call anyone to drive the car away. He is not so intoxicated that he is a danger to himself, so the officers release him from custody (rather than making him sober up in an emergency room for a few hours).
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At this point, three hours have passed since the initial report. One of the officers drives back to the house to make sure that the trespasser doesn't drive the car away. The officer immediately sees the car being driven away. The officer can't see who the driver is, but suspects that it is the trespasser, and on that suspicion tries to pull the car over. The driver tries to escape at high speed for half a mile, but eventually stops and is revealed to be the trespasser. The officer notes that the trespasser still appears intoxicated (though less than he was three hours prior), and arrests the trespasser for (inter alia) drunk driving.
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At trial, the trespasser argues that the officer did not have enough suspicion to stop the car. But the trial judge rejects this argument, and the appeals panel affirms. The "reasonable suspicion" necessary for a warrantless motor-vehicle stop is a low bar, and the officer in this case cleared that bar when he observed the car being driven away in conjunction with the trespasser's statement that he wasn't going to call anyone to drive it away.
There was also a case that I posted in the Wednesday Wellness Thread.
They're called "snark" subreddits. Null has complained a few times about how they get away with harassment that would be immediately banworthy on Kiwi Farms.
Bro, do you seriously think Kiwi farms is a more rigid environment than reddit? Do you seriously think communities on reddit can organize CPS calls openly? Do you seriously think communities on reddit can organize CPS calls openly? Doxxing and personal information is banable, you can't even post a screenshot with someone's username on it because they consider that harassment. The whole point of Kiwi farms is that is not as anal and rigid as these other sites. Kiwifarms doesn't allow calls to action, that's it, everything else that is legal is allowed.
Non-Null quote regarding H3H3's lawsuit against the moderators of that group's snark subreddit:
very bizarre to see people in this thread joyfully celebrating the fact that a Professional Internet Faggot got a judge's permission to dox and sue Redditors for being mean to him on the internet. I wonder if our friend Mr. Elliot Fong is paying attention.
Nigga the anti-H3 people sent him skulls in the mail, tried to get his kids taken away, and people on h3snark were taking credit for it and openly bragging about it. That shit is straight up illegal and he is well within his rights to subpoena reddit for the names of the people who moderated the communities where that behavior happened and encouraged it. This is true regardless of your opinion on Ethan.
perhaps you have forgotten kiwifarms' status as The Most Hated Forum. baseless accusations of defamation or harassment can and have been used effectively against this site and its user base.
Kiwi Farms, as far as I know, has not sent people human skulls in the mail or tried to call CPS with the intent of wrongfully getting someone's kids taken away.
You're making an argument that this is setting bad precedent, but the kind of person who would spread lies in order to destroy this site a-la Keffals during DKF don't need that precedent. It already happened and did not involve use of the law. I repeat my statement that there is literally nothing wrong with going through the proper legal channels to obtain the identities of people who tried to fuck with you and your family so that you can sue them.
If Null thought this sort of thing would hurt the site in some way, he wouldn't be featuring it himself: [screenshot of thread's being featured on Kiwi Farms front page]
ToaKraka
Dislikes you
7d ago
Source, included in the record of a 2016 Senate hearing on this topic by John McCain
ToaKraka
Dislikes you
8d ago
In a 100-page court opinion, six of the New Jersey Supreme Court's seven justices go on a deep dive regarding SBS/AHT (shaken-baby syndrome/abusive head trauma), and conclude that there is insufficient scientific evidence to support the pronouncement of the prosecutor's expert witness that "the only explanation for the children's symptoms, to a reasonable degree of medical certainty, was that the children were shaken by the caregivers" (in these two consolidated cases, the children's fathers).
The State has not met its burden of establishing general acceptance in the relevant scientific communities because the research, studies, and testimony presented at the hearing reflect a lack of general acceptance in the biomechanical community regarding SBS/AHT without impact [as opposed to shaking with impact]. There is evidence of general acceptance by many in the medical community, but the State must also establish general acceptance in the biomechanical community, and it has failed to do so.
Surely, if there is physical evidence of trauma to a child or other evidence of abuse, the State can present such evidence to a jury. And, if new, reliable, scientific evidence is developed, the State can, of course, in a future case, make a showing under the Daubert standard this Court adopted in Olenowski I, that expert testimony regarding SBS/AHT without impact is reliable. In such a case, scientific evidence and research, both old and new, could be presented and considered. Science is constantly evolving, so the door is not forever closed on making such a showing of reliability
There is no dispute that child abuse is a serious and unacceptably cruel act against the most vulnerable and innocent in our society. There is no dispute that, when a young child presents at a hospital or other medical facility with symptoms including subdural hematomas, retinal hemorrhages, and encephalopathy, such symptoms present a worrisome and urgent situation. No one disputes that medical professionals, including pediatricians, radiologists, neurologists, neurosurgeons, ophthalmologists, and more perform admirable work every single day to care for severely ill children who present with the symptoms associated with SBS/AHT.
The question before this Court, however, is whether the State has met its burden of proving that an expert should be allowed to take the witness stand and testify, not only about the injuries observed on a child through medical examinations and tests, but also that the only explanation for those injuries is child abuse. We hold that the State has not met that burden, and that Dr. Medina's testimony is therefore unreliable and inadmissible at trial.
The lone dissenting justice spends another fifty pages arguing (inter alia) that (1) SBS/AHT is far more scientific than the other medical diagnoses that have been rejected by the court under the same standard (identifiable character traits common to rapists, voiceprint analysis, estimating a person's height from the size of his shoes, hypnotically refreshed testimony, child sexual abuse accommodation syndrome, and Alcotest machines calibrated without an NIST-traceable digital thermometer) and (2) completely banning expert testimony on SBS/AHT, rather than permitting the jury to decide between competing experts at trial, is an excessively harsh sanction.
The [Consensus Statement on Abusive Head Trauma in Infants and Young Children] was endorsed by the national and international professional societies of every major discipline involved in the diagnosis and treatment of SBS/AHT. That includes the American Academy of Pediatrics (AAP), the American Society of Pediatric Neuroradiology, the American Association for Pediatric Ophthalmology and Strabismus, the Executive Committee of the American College of Radiology, the American Professional Society on the Abuse of Children, the European Society of Neuroradiology, the Swedish Paediatric Society, the Norwegian Pediatric Association, the Japanese Pediatric Society, the Society for Pediatric Radiology, the European Society of Paediatric Radiology, the Sociedad Latino Americana de Radiología Pediátrica, the Société Francophone d'Imagerie Pédiatrique et Prénatale, the Asian and Oceanic Society for Paediatric Radiology, and the Australian and New Zealand Society for Paediatric Radiology.
This more than suffices to show that SBS/AHT is generally accepted in every major discipline involved in its diagnosis and treatment: pediatrics, child abuse pediatrics, neurology, neuroradiology, neurosurgery, radiology, ophthalmology, and emergency medicine.
I note the sweep of the majority's decision. Acknowledging a debate and granting a new trial to allow experts to dispute the merits of a particular medical diagnosis is entirely different from prohibiting a trial from taking place at all. The majority has chosen the latter, holding that "expert testimony regarding SBS/AHT without impact… cannot be admitted at trial".
Under the majority's rule, unless "new, reliable, scientific evidence is developed… that expert testimony regarding SBS/AHT without impact is reliable", no person in New Jersey can be charged with child abuse for shaking or slamming an infant unless external evidence of impact is present. Similarly, the Division of Child Protection and Permanency (DCPP) will no longer be able to bring Title 9 proceedings in such cases. The Attorney General and DCPP warn that this will be "a significant setback to public safety" and will "hamper DCPP's ability to fulfill its responsibilities… to 'immediately take such action as shall be necessary to insure the safety of the child' upon receiving a report of [child] abuse".
In my view, a better approach would be to allow a full exchange between experts on the merits of an SBS/AHT diagnosis in any particular case.
This case should inspire judicial modesty. It should call to mind Chief Justice Rehnquist’s warning that judges resist the temptation to believe themselves "amateur scientists". Yet the majority "step[s] beyond its role as gatekeeper of relevant and reliable information, and instead act[s] as the final arbiter of the correctness of Dr. Van Ee's" and other experts' conclusions. For these reasons, I respectfully dissent.
I personally find these judge-made standards of sadism and masochism to be very interesting. In this case, the trial judge and one appeals judge think that the insertion of a foreign object into a pubescent minor's vagina is inherently humiliating, while the other two appeals judges think otherwise. What answer would a survey of the general public give to this question? I don't know, but I feel doubtful that it would be a landslide in either direction.
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