Salvadoran Court Acquits Woman Charged With Homicide After Stillbirth

MEXICO CITY — A Salvadoran judge on Monday acquitted a woman who was accused of homicide after giving birth to a stillborn baby, a decision hailed as a victory for women’s rights advocates fighting against the harsh application of one of the world’s strictest abortion bans.

In ruling that the woman, Evelyn Hernández Cruz, 21, was not guilty, the court seemed to accept the defense’s arguments that she had suffered an obstetric emergency that made it impossible for her to save the baby.

Prosecutors, who were trying the case for a second time, had asked for a 40-year prison sentence. The case was widely seen as a test of the willingness of courts to accept homicide prosecutions of low-income women who lose their babies, often when giving birth at home without access to medical care.

Ms. Hernández, 21, was raped by a gang member and was not aware that she was pregnant, her lawyers argued. After experiencing a stillbirth in the latrine of her home in April 2016, she lost consciousness. Her mother found her covered in blood and took her to the hospital in Cojutepeque, a town about 25 miles west of San Salvador, El Salvador’s capital.

The hospital authorities called the police and Ms. Hernández was charged with aggravated homicide. A judge sentenced her to 30 years in jail, but the verdict was overturned last year on procedural grounds and an appeals court ordered a second trial.

During the trial last week, prosecutors argued that Ms. Hernández should have known that she was pregnant and taken steps to protect her baby.

El Salvador has one of the world’s strictest laws against abortion, prohibiting it under any circumstance, even to save the life of the mother. Women’s groups say that the criminalization of obstetric emergencies is a consequence of that law, because any woman who experiences a complication in pregnancy could become a suspect.

Rather than charge them with abortion, which carries a maximum penalty of eight years in jail, prosecutors have instead accused dozens of women of homicide. The weight of those prosecutions has fallen on poor and marginalized women with little education or access to health care.

Women’s groups have identified 25 women who were sentenced to as much as 40 years for homicide or attempted homicide after suffering obstetric emergencies, and since 2014 have campaigned to free them. As many as two dozen more were charged and jailed while they awaited trial before the charges were dropped or they were acquitted.

Lawyers have filed appeals one by one. Last year, eight women were released, either because their sentences were commuted or they were acquitted. This year, apart from Monday’s acquittal, four more were released when their sentences were commuted.

Fifteen women still remain in prison, serving long sentences for similar accusations, and three more are awaiting trial.

In a statement, Morena Herrera, of the Citizen Group for the Decriminalization of Abortion, said that Ms. Hernández’s acquittal “is a sign of hope for all women who remain in jail for crimes they did not commit for health problems that should never have been brought to court.”

“No woman should go through the ordeal that Evelyn did,” she said.

Paula Avila Guillén, a lawyer and director of Latin American initiatives at the Women’s Equality Center in New York, who works closely with Salvadoran women’s groups, said the harsh anti-abortion law sets the homicide prosecutions in motion.

“The problem is that once the word abortion is out there, it completely stigmatizes the process,” Ms. Avila Guillén said. “There is no presumption of innocence against a woman once the word abortion is thrown out.”

An attempt last year to permit abortion in cases of rape and to protect the health of the mother failed in El Salvador’s congress, and the chances of easing the 1998 anti-abortion law became more remote as conservatives became dominant in the legislature.

President Nayib Bukele, who took office in June, has said that poor women should not be targeted unfairly in these cases, but he has remained silent in the case of Ms. Hernández, the first woman to be prosecuted under his presidency.

Still, there are signs that the courts are beginning to shift their evaluation of the cases, Ms. Avila Guillén said.

In March, the Supreme Court commuted the sentences of three women, who had each spent almost a decade in prison for aggravated homicide, and ordered their release. The court ruled that the women’s rights were violated because prosecutors and lower courts failed to take into account the social and gender barriers they faced.

In December, a court declared another woman, Imelda Cortez, not guilty of attempted homicide after she gave birth at home. She had been raped for years by her stepfather and said she had not known she was pregnant when she lost consciousness during the birth. The baby girl was healthy but Ms. Cortez was accused of abandoning her, and spent 17 months in pretrial detention.

Noting that Ms. Cortez needed a blood transfusion when she arrived at the hospital, the judge ruled that there was no way that Ms. Cortez could have intended to abandon her baby.

Ms. Avila Guillén said it was “the first time that a judge recognized that giving birth by yourself after being raped for six years is a traumatic experience.”

In July, the Citizen Group, the Women’s Equality Center and two other human rights groups presented four cases, including those of Ms. Hernández and Ms. Cortez, to the United Nations Working Group on Arbitrary Detention.

“With these four emblematic cases, we hope the United Nations Group determines that El Salvador persecutes and arbitrarily detains women who suffer obstetric emergencies and/or births outside the hospital, particularly poor, rural women,” said Morena Herrera, an activist with the Citizen Group.

Although judges have begun to revise their approaches to these cases, prosecutors have largely continued to file charges, Ms. Avila Guillén said.

“Sometimes it feels as though we are on a hamster wheel,” she said.

Source: NYT

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