In April 2016, Evelyn Hernández was an 18-year-old high school student. During the unexpected birth of her child at her home near Cojutepeque in rural El Salvador, she suffered an obstetric emergency that resulted in the death of her baby. Hernandez was charged with aggravated homicide. She spent nearly three years behind bars before being released in February and acquitted by a trial court in August, the second time she’d been found innocent.
Now, the state-employed prosecutor in Hernández’s case is seeking to formally appeal that acquittal. If he succeeds, Hernandez will be jailed again—making her one of dozens of Salvadoran women imprisoned after miscarriages or obstetric emergencies due to the country’s strict abortion ban.
“What level of resources is the Salvadoran government spending on convicting these women?” asked Morena Herrera, president of the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion). The Agrupación has accompanied and supported Hernández throughout the process of her trials. “And this is all against a woman who was then 18 years old, who was raped and became pregnant, and had an obstetric emergency, and who has been found innocent not once, but twice? And then the government delays and delays and delays the legal proceedings.”
“As Attorney General of the Republic, we are responsible for the support and accompaniment of women victims in any crime and in any of its modalities, but, in the case of Evelyn Hernández, there are no elements to consider her a victim of any fact, on the contrary, the only victim is her son,” the prosecutor said in a statement on Friday. “This appeal is the manifestation of the legal protection of … the life of a helpless being who depended absolutely on the care of his mother, who caused his death.”
Hernández spent 33 months in the Ilopango Women’s Prison during the various legal proceedings. The Supreme Court annulled the original conviction on September 26, 2018, on the grounds that there was insufficient evidence to justify the conviction. It ordered a new trial for her. As Rewire.News reported, she was released from prison on February 15, 2019, after her attorneys from the Agrupación pressured the government to obey a Salvadoran law that mandates that a person cannot be held for more than 24 months without a final verdict, which she never had.
Her most recent trial was monitored by the American Bar Association’s Center for Human Rights, which expressed deep concerns about the proceedings in its August 20 report. As the report notes, the state prosecutor argued that Hernández was “liable for aggravated homicide by omission: in other words, that Ms. Hernandez had failed to fulfill the duty of care that she owed her child.” She had “knowingly neglected to seek appropriate prenatal services during her pregnancy.”
The report continues: “Not a single prosecution witness, however, testified that Ms. Hernández had demonstrated awareness of her pregnancy. In fact, the primary prosecution witness on this subject, health worker Marjorie Lizeth Gonzalez de Mauricio, could only confirm that there were rumors Ms. Hernandez was pregnant. She further stated that Ms. Hernández and members of Ms. Hernández’s family had explicitly told her that Ms. Hernández was not pregnant”
“The state failed to establish that Ms. Hernández purposefully omitted to seek treatment during her pregnancy,” the ABA report says.
The prosecution’s other main argument, the report says, was that “Ms. Hernández did not provide her child with appropriate care upon birth.”
“The evidence in this regard, however, was similarly inadequate. Firstly, the testimony of medical experts left doubt as to whether the child was born alive. Experts who concluded the child was born alive noted that he had likely died from aspiration of fecal matter and/or amniotic fluid. This emergency could have led to near-immediate death, meaning that Ms. Hernández would have been unable to assist in any event,” the report concludes.
The ABA report raised other concerns, such as violations of doctor-patient confidentiality, lack of presumption of innocence, and treatment that violates the rights of a woman seeking emergency medical care.
As the Agrupación pointed out in a press statement on September 6, the attorney general is ignoring its legal obligation to “total objectivity” and to “investigate not only the facts and circumstances on which the responsibility of the accused is based or those that aggravate it, but also those that exempt it from it, extinguish it or attenuate it.”
Herrera and other feminists have pointed out that while the government uses its resources to continue interminable prosecutions of Hernández, prosecutors have not responded vigorously to the thousands of cases of pregnancies in minors resulting from rape or incest.
When Hernández spoke to the press after the first day of her trial in August, she said she had been raped by a gang member but had been afraid to say so publicly because of the death threats the aggressor made against her and her family. A report by the United Nations Population Fund, “Map of Pregnancies in Girls and Adolescents El Salvador 2017,” showed there were 19,190 pregnancies in 2017 among girls and adolescents between 10 and 19 years of age. (The age of consent in El Salvador is 17.) A 2017 study showed that the accused was only found guilty in 10 percent of rape cases reported to prosecutors in which the victim was under 15 years old.
The local court in Cojutepeque, where Hernández was first tried, must now decide whether to accept the request for appeal. Herrera explained that the process could take up to two years.
“This is scandalous to the media and the international community,” said Herrera. “And, it is scandalous to us as Salvadorans.”