Rape victim jailed for 30 years after stillbirth begins new trial in El Salvador

Maya Oppenheim

A teenage rape victim in El Salvador who spent nearly three years in jail for murder following a stillbirth has appeared in court for a retrial.

Evelyn Beatriz Hernandez was given a 30-year prison sentence in 2017 for aggravated murder by a female judge who ruled the teen had induced an abortion.

El Salvador has one of the harshest abortion bans in the world. It is even illegal in cases of rape and incest, when the woman’s life is in danger, or if the foetus is deformed.

Ms Hernandez, now 21 and from a poor rural community, said she was raped and did not realise she was pregnant until she went into labour in a toilet and gave birth to a stillborn baby.

The Citizen Group for the Decriminalisation of Abortion (CDFA) said there was no proof that she tried to kill the child, and that she suffered a pregnancy-related complication.

Miscarriages and stillbirths in El Salvador are often treated as suspected abortions, which have been legally regarded as murder since 1997.

Legal cases against women who have experienced miscarriages and obstetric emergencies are forcefully pursued, with women who turn up at public hospitals after a miscarriage sometimes being accused of having killed the foetus.

Around 20 women are serving sentences of up to 40 years for abortion crimes after suffering miscarriages, stillbirths or pregnancy complications in the socially conservative Catholic-majority nation, the CDFA estimates.

The group has tracked 146 prosecutions against women for abortion since 2014. Of those cases, 60 women were jailed, with 24 convicted of aggravated homicide. Some insist they had miscarriages and did not deliberately end their pregnancies.

Ms Hernandez’s sentence was annulled in February in an appeal before El Salvador’s top court – with a new trial being ordered with a new judge.

Ms Hernandez was released from prison in February of this year when she was granted conditional liberty for the duration of her trial. She spent 33 months behind bars – exceeding the 24-month limit under Salvadoran law for those accused without a conviction.

This is the first retrial of an abortion case in El Salvador.

“I want justice to be done. I know everything is going to be OK. My faith lies with god and my lawyers,” Ms Hernandez told journalists as she entered the courthouse, adding that she hopes for “good things, unlike what happened before, and I am innocent.”

Despite the fact the Supreme Court accepted the defence lawyers’ argument that no proof had been presented Ms Hernandez caused the baby’s death, prosecutors claim she is guilty because she did not seek maternity care.

Ms Hernandez, who pleaded not guilty at her retrial, maintains that she never knew she was pregnant.

“I truly did not know I was pregnant,” she said on Monday. “If I had known, I would have awaited it with pride and with joy.”

Both lawyers and campaigners have called for the public prosecutor’s office to drop the charges or offer a plea deal so the three-year legal process against Ms Hernandez can finally come to an end.

“What Evelyn is living is the nightmare of many women in El Salvador,” her lawyer, Elizabeth Deras, said.

Dozens of supporters staged a protest outside the court near the capital, San Salvador, calling for a change in the legislation.

The court has adjourned the trial until 26 July because of a prosecution witness’ health issue.

Pro-choice and women’s rights activists say her retrial is a key litmus test for El Salvador’s new president’s position on abortion. They hope he will relax the country’s stance on women’s reproductive rights - starting with an acquittal for Ms Hernandez.

Nayib Bukele, who took office in June, has said he believes abortion should only be permitted if the mother’s life is at risk but that he is “completely against” criminalising women who have miscarriages.

“If a poor woman has a miscarriage, she’s immediately suspected of having had an abortion,” Mr Bukele said in 2018. “We can’t assume guilt when what a woman needs is immediate assistance.”

Ms Hernandez gave birth in the latrine of her home in a small rural community in April 2016. She lost consciousness after losing large amounts of blood.

During her original trial, she said she had been repeatedly raped – with her lawyers saying she was too scared to report the rapes.

Despite being in the third trimester, Ms Hernandez said she had confused the symptoms of pregnancy with stomach ache as she had experienced intermittent bleeding which she presumed to be her period.

Her mother says she found her daughter passed out next to the makeshift toilet and hailed a pickup truck to transport her to a hospital which was half an hour away. She was arrested at the hospital.

Mariana Ardila, managing attorney at advocacy group Women’s Link Worldwide, said: “Women and girls all over the world deserve better health services, not jail. Judges must set aside their prejudices about women and adequately assess the context in which they live instead of condemning them for being poor and lacking access to health services during their pregnancies”.

Despite the fact six other countries in Latin America and the Caribbean have absolute bans on abortion, El Salvador stands out for its high number of convictions.

The United Nations urged El Salvador in 2017 to issue a moratorium on applying its abortion law and to review all cases where women have been jailed for abortion-related crimes.

Salvadoran law dictates up to eight years in prison for women who intentionally terminate a pregnancy, and for medical practitioners who help them. However, aggressive prosecutors frequently upgrade the charges to aggravated homicide, which carries a maximum 40-year sentence.

Women who are convicted of abortion in the country are predominantly from poorer communities and struggle to pay for a lawyer to defend them in court.