Things That Matter

Evelyn Hernandez – A Rape Survivor – Was Imprisoned Under Anti-Abortion Laws, Now She’s A Free Woman

It’s no secret that countries across Latin America have some of the strictest abortion laws in the world – El Salvador is no exception. In fact, it’s the only known country that that regularly prosecutes and imprisons women as a result of its abortion ban – even in cases where the women suffered  miscarriages, stillbirths and other obstetric emergencies.

But over the last decade, activists, lawyers, and international women’s groups have rallied behind Salvadoran women imprisoned for “obstetric emergencies.” Since 2009, more than 38 women have been released from jail, 16 remain incarcerated, and at least three — including Evelyn Hernandez — are in the middle of legal proceedings.

Evelyn Hernandez, of El Salvador, has been found innocent after a retrial.

Evelyn Hernandez’s case had made international headlines when she was tried for homicide charges after experiencing a stillbirth – when she didn’t even know she was pregnant.

But after years of maintains her innocence of any wrongdoing, Hernandez has finally been found innocent by El Salvador’s judicial system.

“I was made the victim of a justice system that is anything but just. I know that there are countless other women who have experienced the same in a country where miscarriages are still considered a crime and reproductive rights are nonexistent. We must stand up and demand that the Salvadoran government release all the remaining women who have been wrongfully put behind bars like me. The fight does not end here,” Hernandez said after the trial.

Her defense attorney added in a tweet, “I am about to explode with happiness.”

Amnesty International described the verdict as a “resounding victory for the rights of women in El Salvador” and called on the government to “end the shameful and discriminatory practice of criminalizing women”.

El Salvador has one of the strictest anti-abortion laws in the world.

Since 1998, El Salvador has had a complete and total ban on abortion – with zero exceptions – including in cases where the woman’s life is at risk for the pregnancy is a result of rape or incest. In fact, El Salavador is the only known country that regularly prosecutes and imprisons women as a result of its abortion ban – even in cases where the women suffered  miscarriages, stillbirths and other obstetric emergencies.

Typically, women found guilty face between two and eight years in jail but in many cases – as was the case with Evelyn – charges are increased to aggravate homicide, which carries a minimum sentence of 30 years.

Today, more than 20 women are in prison under trumped up charges of manslaughter, homicide, or aggravated homicide after being accused of having an abortion. In total, at least 50 women have been imprisoned.

Evelyn’s case had been in the headlines for years after repeated appeals by prosecutors.

Evelyn’s case started when she was a victim of sexual violence in her community – having allegedly been raped by a gang member at 18-years-old.

She was first arrested after the body of her baby was found on the property of her rural home. Evelyn says she had experienced severe stomach pains and bleeding and went to the toilet, where she passed out. It’s here where her baby was stillborn. But in 2017, a judge ruled that Evelyn knew she was pregnant and tried to conceal the baby’s birth. She was found guilty and sentenced to 30 years in prison, of which she has already served 33 months.

In July 2017, the judge ruled that Ms Hernández knew she was pregnant and found her guilty. She was sentenced to 30 years in prison of which she has already served 33 months.

Evelyn’s lawyers appealed the judge’s decision. They said forensic tests showed that the baby had died of meconium aspiration, inhaling his own stool. This can happen while the baby is still in the uterus, during delivery or immediately after birth. 

The lawyers said the test proved that Evelyn had not tried to abort the baby but that it had died of natural causes. “There is no crime,” defense lawyer Bertha María Deleón said during oral arguments. In 2019, the country’s Supreme Court agreed and annulled Evelyn’s 2017 conviction and ordered a retrial with a new judge.

Evelyn’s case could have a major impact on several other women across the country accused of similar crimes.

Credit: Oscar Rivera / Getty Images

According to human rights experts, there are at least 17 other women who have been jailed under the country’s strict abortion laws. Campaigners have successfully managed to free about 30 other women over the last decade  – after winning hard-fought court cases.

Evelyn’s retrial is the first case to be heard under new President Nayib Bukele, who took office in June, and women’s groups are hoping he could usher in a more lenient stance on the issue. 

President Bukele has said that he opposes abortion but has expressed sympathy with women suffering miscarriages who then come under suspicion.

“If a poor woman suffers a miscarriage, she’s immediately suspected of having had an abortion. That’s where the issue of social inequality comes into play,” he said while he was running for president.

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