El Salvador’s Supreme Court sided with the LGBTQ community.
The El Salvador Supreme Court has blocked a measure that would have banned same-sex marriage. The Supreme Court claims that the measure was voted on too hastily to allow public debate on the issue, according to The Associated Press. The Legislative Assembly voted in favor of the measure in April 2015 but the decision by the Supreme Court blocked legislators from ratifying the ban. The same legislation would have also legally defined marriage as a union only between a man and a woman, and aimed to bar same-sex couple from adopting children. It would have required 56 of the 84 legislators to ratify the measure, as reported in The Associated Press.
El Salvador is one of 16 countries that were ordered to legalize same-sex marriages by the Inter-American Court of Human Rights. Twenty countries agreed to follow the court’s rulings when they voted to be part of an association of states. Sixteen of them still do not recognize same-sex marriage. Those countries include Peru, Bolivia, Chile, the Dominican Republic, Ecuador, El Salvador, Guatemala, and Mexico. The IACHR ruled on a petition that was filed by Costa Rica’s president asking for the court to allow same-sex marriage in the region. The court ruled on Jan. 10 that all the countries under the jurisdiction of the court must legalize and allow same-sex marriages.
According to The Economist, the court, which is based in San Jose, Costa Rica, was first established in the 1970s to rule on human rights cases. Over time, the court has become something of a supreme court on human rights in Latin America.
There are rising tensions in El Salvador as activists are protesting the attorney general’s decision to seek a third trial for a woman accused of killing her stillborn son. The woman, Evelyn Hernandez, was exonerated in an August retrial after an earlier judgment found her guilty of killing her stillborn son and sentenced her to 30 years behind bars. Hernandez, 21, was found innocent after the judge said there was not enough evidence to convict her of the crime.
The issue of abortion has always been a widely-debated and divisive topic in conservative El Salvador where abortion is illegal. Many women in the country have been prosecuted for attempting abortions even in dire medical situations. Activists look at Hernandez’s case as an example of an unjust system targeting her due to her limited financial status.
“We do not want Evelyn to be viewed as a criminal and persecuted,” Claribel Ayala, a protester outside the attorney general’s office in El Salvador told Reuters. “We’re going to stand with her until justice is done.”
While activists see Hernandez’s case as a trial against women rights, prosecutors are looking at her as a criminal.
Activists dressed in clown attire took to the streets of El Salvador this week to voice their disapproval of the news that attorney general Raul Melara would be seeking a third trial in Hernandez’s case. Many of them threw confetti-filled eggs at his office and even painted his door red with paint. Melara acknowledges their anger but sees the case with a different lens.
“There are groups that have a big interest in seeing this as persecution against poverty, that this woman is being targeted because she had an emergency outside the hospital, but the proof is overwhelming and shows this isn’t the case,” Melara told reporters.
Hernandez’s release from prison was viewed as a victory for women rights.
Hernandez said she was raped by a gang member and was unaware of her pregnancy until just before delivering a stillborn son back in 2016. She was found on her bathroom floor covered with blood and would be taken to an emergency room by her mother and a neighbor. When doctors examined her they noted that there were visible signs of delivery but found no baby. They reported Hernandez to local authorities and would later find her newborn dead inside of a septic tank.
She’s been convicted and sentenced to 30 years in prison for the alleged killing of her child. Prosecutors said that she had purposely induced abortion only to leave the newborn to die. Hernandez wound up only serving 33 months out of her original 30-year sentence before being released in February.
This was due to an appeal before the Supreme Court who said that Hernandez should be released due the original conviction being based on prejudice and insufficient evidence. The acquittal was looked at as a huge victory for women’s rights not only in El Salvador but globally.
“It was tough to be locked up, especially when I was innocent,” Hernandez said the day she was released. “There are others who are still locked up and I hope they are freed soon.”
Hernandez has maintained her innocence from the start that she had no knowledge of being pregnant. Now prosecutors are looking at a third trial to convict her of killing her newborn child.
The attorney general is seeking to convict Hernandez of murder even after being released from prison. While many see Hernandez as the true victim in this ordeal, prosecutors see things differently.
“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,” prosecutors said in a statement . “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.”
Hernandez’s legal team is fighting back against these claims saying that the attempt at a retrial is a waste of resources that could be used to serve more important issues.
“We expected this persecution against Evelyn to stop,” one of her lawyers, Elizabeth Deras, told BuzzFeed News. “Instead, they are spending the state’s resources unnecessarily. Resources that could be used to fight corruption.”
As of now, the request for a new trial must be assessed by a different court before it can proceed legally. The prosecution is looking to sentence Hernandez to 40 years in prison.
Evelyn Beatríz Hernández is just 21 years old and seems to be proving that El Salvador will jail women for simply being women. In 2016, Hernández was raped by a gang member and was afraid to tell anyone about it after he made death threats against her and her family for speaking out. Months later, she fainted while using the bathroom, unknowingly having miscarried during the process. One year later, El Salvador charged her for murdering her newborn child and sentenced her to 30 years in prison for aggravated homicide. After public outcry, the Supreme Court annulled the conviction and freed her after spending nearly 3 years in prison, citing lack of evidence.
It ordered a retrial with a new judge. That judge acquitted her in August. But prosecutors won’t rest until they see Hernández go to prison. Federal prosecutors are appealing the judge’s ruling, which means Hernández may have to endure another court trial.
Evelyn Hernández was just 18 years old at the time of her rape and miscarriage.
She was still a student in high school when she was raped in 2016. She had no idea she was pregnant when she went to her rural home’s outhouse with stomach pains and bleeding. That’s when she fainted. Her mom found her on the outhouse floor, drenched in blood and took her to the hospital. Doctors found signs that she had delivered a baby, but not even an awareness of a baby.
El Salvador has an absolute ban on abortion which has led to the harsh criminalization of women and their bodies.
Doctors are required to call authorities. Hours later, local officials found a newborn dead in the family’s septic tank. Hernández was immediately accused and charged with inducing abortion and aggravated homicide. El Salvador imposed a total ban on abortions in 1998, no matter if the woman is raped, or if the pregnancy poses a risk to the mother’s life.
Hernández was found guilty by a female judge, who sentenced her for 30 years on a murder conviction.
The three years that follow her initial traumatic rape have been a nightmare for the young woman. In July 2017, a female judge ruled that Hernández had induced abortion. Thankfully, civil rights activists around the world called on El Salvador to reexamine the case. Her lawyers cited forensic tests that showed the baby more likely died of natural causes and was stillborn, prompting a re-trial. The Supreme Court annulled the original conviction on September 26, 2018, and ordered a re-trial.
Six months later, she walked out of Ilopango Women’s Prison, met by a cheering crowd of mujeres carrying “Justice for Evelyn” banners.
“I thank all of you who have supported me and thank everyone from around the world who has shown support,” Evelyn told the press and her supporters. “It was tough to be locked up, especially when I was innocent. There are others who are still locked up and I hope they are freed soon.”
Last month, she faced what many people thought would be her last trial, during which prosecutors blamed her for the miscarriage.
The American Bar Association’s Center for Human Rights reported that the federal prosecutor argued that she 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.” Hernández allegedly had “knowingly neglected to seek appropriate prenatal services during her pregnancy.”
Still, on August 19, 21-year-old Evelyn Beatríz Hernández Cruz was acquitted after a judge ruled that there was not enough evidence to convict her of the alleged crime she had been accused of years prior. She stood on the steps of the courthouse after her acquittal and told the world, “Thank God, justice had been done. My future is to continue studying and to move forward with my goals. I am happy.”
El Salvador continues to prosecute Hernández because that’s what El Salvador does to women.
According to Buzzfeed News, Hernández is just one of the dozens of women who are serving prison time for murder charges of their infants. If women are even suspected of abortion, they can be prosecuted as criminals in El Salvador. Even seeking the procedure itself, without actually benefitting from it, is tantamount to the crime in El Salvador.It is one of 16 countries in the world with such strict regulations on women’s bodies, including Egypt, Honduras, Haiti, Nicaragua, among others.
Human rights activists are disturbed by the level of resources the Salvadoran government is spending on convicting women. Hernández has been found innocent twice, now, and may be looking at another trial.