Teenage rape victim in El Salvador handed 30-year prison sentence over stillbirth to face retrial for murder

Maya Oppenheim

A teenage rape victim in El Salvador who was convicted for murdering her child and imprisoned for nearly three years after a stillbirth will now face a retrial next week.

Evelyn Beatriz Hernandez was given a 30-year jail sentence in 2017 for aggravated murder by a female judge who ruled the teenager 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 bathroom 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 her baby and that she suffered a pregnancy-related complication.

Miscarriages and stillbirths in El Salvador are often treated as suspected abortions, which have been considered murder under Salvadoran law since 1997. Abortion is a crime under any circumstance in the Central American country.

The CDFA estimate around 20 women are in prison for abortion crimes in the socially conservative and Catholic majority nation when they suffered miscarriages, stillbirths or pregnancy complications – with some serving sentences of up to 40 years.

The local rights organisation are campaigning for these jailed women to be freed.

Ms Hernandez’s sentence was annulled in February in an appeal before El Salvador’s top court – signalling a victory for the CDFA.

Ms Hernandez emerged from prison back then to chants of “Evelyn, you are not alone!” – having been allowed to live at home until the fresh trial.

On Wednesday, her lawyers announced she would face a retrial next Monday.

“We’re convinced that Evelyn is innocent,” Ana Martinez, one of Hernandez’s lawyers at the CDFA, told the Thomson Reuters Foundation. “We hope that on Monday the rule of law and justice wins in this country.”

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 menstrual period.

“I did not want to kill my son,” she told the court.

Mariana Ardila, managing attorney at advocacy group Women’s Link Worldwide, said: “This new trial is an opportunity for Evelyn to find justice at last, and for El Salvador to stop criminalizing women who have medical complications during pregnancy.

"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”.

Pro-choice activists say her retrial is key litmus test for El Salvador’s new president’s position on abortion. Nayib Bukele, who took office in June, has said he believes abortion should only be permitted if the mother’s life is at risk.

“This case would be the first case that would be tried after the new president is in power,” Paula Avila-Guillen, director for Latin America initiatives at the Women’s Equality Center, a US-based reproductive rights advocacy group, said. “It will also send a message about what is the political mood.”

Although 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.

However, attempts to pass a bill that would ease El Salvador’s abortion ban have failed.

“One of the factors is a very religious and strong evangelical society,” Avila-Guillen, a human rights lawyer supporting CDFA cases, said.

“There’s no presumption of innocence. The moment that the word abortion gets thrown in a case, from that moment on women are guilty in the eyes of everyone.”

Amnesty International has argued El Salvador is “one of the most dangerous countries to be a woman”. Women who are convicted of abortion in El Salvador are predominantly from poorer communities and have limited resources to fork out for a lawyer to defend them in court.