El Salvador rape victim jailed for stillbirth goes on trial again

San Salvador, El Salvador – Evelyn Hernandez, a 21-year-old rape survivor, is set to go on trial for a second time for aggravated homicide in a case that tests El Salvador‘s strict enforcement of its total abortion ban.

Hernandez, from a rural area of El Salvador, experienced a stillbirth while at home in April 2016 and lost consciousness. Her mother took her to the nearest hospital, where doctors alerted authorities of a potential abortion. She was arrested at the hospital. The newborn died of “aspiration pneumonia”, according to the autopsy, meaning that the baby breathed in amniotic fluid during birth, leading to his death.

Hernandez said she was unaware that she was pregnant at the time. Her pregnancy was the result of rape by a gang member.

In July 2017, a judge found Hernandez guilty of aggravated homicide and sentenced her to 30 years in prison. But her defence continued to assert that there is no evidence that proves Hernandez intentionally caused harm to her child.

In December 2018, her sentence was annulled by the Supreme Court after Hernandez’s legal team filed an appeal. A retrial was ordered, and is set to begin on Monday. Lawyers say the original sentence was based on prejudice rather than evidence and medical reports.

El Salvador is one of six countries in Latin America with a total abortion ban, and the country carries out the law with an incomparable tenacity. Dozens of women have been prosecuted for abortion-related crimes since 1998 when the country rewrote the penal code to criminalise abortion in all cases.

Activists say that the majority of the cases involve obstetric emergencies or births outside of a hospital with no proof that a woman intended to induce an abortion or harm her child. All of the cases involve poor women with limited access to the healthcare system or a lawyer, activists say.

“These cases shouldn’t end up being prosecuted,” says Morena Herrera, Salvadoran feminist activist and representative of Citizen’s Group for the Despenalisation of Abortion. “They are public health situations that should be attended by the health system and the woman should not be criminalised.”

First trial since Bukele’s election

Hernandez’s case is the first abortion-related case to go to trial since President Nayib Bukele took office in June 2019. Bukele has said that women who have had obstetric emergencies should not be presumed guilty and that he is in favour of allowing abortions when a woman’s life is at risk. 

But he has not made a direct comment on Hernandez’s case so far. The office of the president did not respond to Al Jazeera’s request for comment on the case, while the public prosecutor declined to comment.

The president’s response to this case will be “an indication of the type of presidency that he wants to have when it comes to women”, said Paula Avila-Guillen, a human rights lawyer and director of Latin American initiatives at the Women’s Equality Center.

How he decides to address the case will determine “if he is really going to take a stand and say, ‘No, under my authority no woman should go to prison because of an obstetric emergency'”, Avila-Guillen told Al Jazeera.

New cases

At least 13 women imprisoned for abortion-related crimes in El Salvador have been released since the beginning of 2018. But even as women are being freed, new cases are being opened. Avila-Guillen said that she has been notified of at least 15 new cases in the past year. 

Hernandez was released from prison in February 2019 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.

Activists and lawyers have urged the public prosecutor’s office to drop the charges or offer a plea deal so that three-year legal process against Hernandez will finally end.

“We hope that she can start a new life plan without the anguish of the possibility of returning to prison,” Herrera said.

The case is not just about women’s rights but also about due process and a strong judicial branch, she added.

“[Ending the case against Evelyn] would be a positive signal to all the young women who live in situations of poverty who could be in this situation, and to all the Salvadoran men and women who believe in justice and democracy.”