Commentary Human Rights

Salvadoran Activists Demand Government Response on Pardons for 17 Women Imprisoned for Miscarriage and Stillbirth

Kathy Bougher

On Tuesday, the plaza in front of the Legislative Assembly in El Salvador blazed with sun and the energy of 200 women and men gathered to demand from the state an accounting of progress made on petitions to pardon 17 women unjustly imprisoned for up to 40 years for what amount to miscarriages, stillbirths, and other obstetric complications.

Read more of our coverage on the campaign for Las 17, the 17 Salvadoran women imprisoned on abortion-related charges, here.

On Tuesday, the plaza in front of the Legislative Assembly in El Salvador blazed with sun and the energy of 200 women and men gathered to demand from the state an accounting of progress made on petitions to pardon 17 women unjustly imprisoned for up to 40 years for what amount to miscarriages, stillbirths, and other obstetric complications.

Various Salvadoran human rights groups submitted the petitions to the government on April 1. By law, it must respond within three months. The law on pardons created a convoluted process, but feminists insist that the three branches of government comply, and quickly. The earliest steps have been completed, but the most fundamentalist-influenced body, the El Salvador Supreme Court of Justice, provides the next major challenge.

The chants shouted through the plaza reflected the larger issues at play:

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If the 17 were female legislators?

They never would have been charged!

If the 17 were daughters of male legislators?

The pardons would have been granted by now!

Morena Herrera, president of La Agrupación Ciudadana por la Despenalización del Aborto (the Citizen Group for the Decriminalization of Abortion), which organized the event, explained:

In May of this year, the United Nations Committee on Economic, Social and Cultural Rights recommended to El Salvador that it revise its legislation, particularly around abortion as it affects imprisoned women. All three branches of the government must listen to this call.

If we are not able to resolve the problem of the 17 [women] at this level, we will go to the international human rights systems, including the United Nations and the Inter-American systems. Sometimes these are the only places where a citizen of this country can access justice.

She added, “Right now, there are five more women in the judicial process, and they could be added to the 17. Again, they are young and live in situations of poverty. There is no evidence that the women committed crimes,” said Herrera. “They are being convicted in a vicious judicial system with decisions based on prejudices.”

Father Antonio Rodriguez, parish priest for the family of Teresa, one of the 17 women, steered clear of the debate over the decriminalization of abortion, but offered common ground for compassion, reasonableness, and dialogue:

We know that Teresa’s baby died from prenatal hypoxia, which is a natural condition. We know that she did not provoke the death. The judicial system worked badly here.

This is a struggle for the liberation of 17 women unjustly imprisoned when they had spontaneous abortions. The state needs to have more humanizing processes to resolve these problems.

It is also a very macho position. If there were 17 women, there were 17 men. You could say that the couple should be jailed, but this isn’t about jailing people. It’s about liberating the 17 women and developing other processes in these situations. In this highly moralized country, we need to open up the debate.

Abortion is completely criminalized under all circumstances in the Salvadoran criminal code. What constitutes abortion in El Salvador? The law fails to define the term. The vague, prejudice-filled language commonly used clouds the charges applied to convict women and adds to the social, legal, and medical confusion. The insufficiencies in the use of language also illustrate the meager knowledge of or lack of interest in the physical and biological processes that women experience in pregnancy and childbirth on the part of those who make life-altering decisions.

The common response when a woman who has recently given birth arrives hemorrhaging at a public clinic or hospital, and a deceased fetus or newborn is found, is for medical personnel to assume she intentionally terminated the pregnancy. They turn her over to police under accusations of “abortion,” which in popular usage is synonymous with “baby-killer,” “unnatural mother,” and “assassin.” There is not a practice of distinguishing between miscarriage or spontaneous abortion, a stillbirth, precipitated birth, an induced abortion, and aggravated homicide. Only the final two come into play, at least for poor young women in public health facilities. Defense attorneys are left to educate judges and prosecutors about the other possibilities.

The reality of the 17 is that not one case file contains any direct evidence of wrongdoing on the part of the woman. It appears that the women experienced miscarriages or stillbirths, precipitated births, or other complications. Although these terms all have clearly defined, universally accepted medical usages in Spanish, neither Salvadoran legislators, judges, nor physicians in public hospitals, nor the general public employ them—at least not with the 17.

Perhaps they fear using any word associated with abortion in other than a punitive context, since medical personnel who assist with an abortion also face criminal charges. Perhaps the lack of knowledge of women’s bodies or a sense of disgust and disdain, wrapped in misogyny, influences their willingness to look beyond the fact, uncontested by the accused women, that a woman who has recently given birth and a deceased fetus or newborn are in the same location at the same time. Given the lack of direct evidence, that physical proximity often becomes the judge’s justification for conviction and imprisonment.

Two of the 17 women received lengthy, unjust prison terms even though their babies did not die. The women gave birth under difficult circumstances outside of a hospital, and each baby suffered minor injuries that quickly healed. The mothers of those children, now young adolescents, have spent all of their children’s lives in prison with convictions for attempted homicide.

On the day after the U.S. Supreme Court’s Hobby Lobby decision, the lack of true access to contraceptives for young Salvadoran women rings even more ominous. Although feminist groups provide education around the use of contraceptives, what young women receive when they seek services in public health clinics is public humiliation. Young women reported in an on-the-ground conversation in El Salvador that in the waiting rooms of clinics they are interrogated: “What is a young, unmarried girl like you doing here asking for contraceptives? Does your mother know you are here?”

On this hot, muggy day, 200 women and men waited while Morena Herrera and Dennis Muñoz, attorney for the Agrupación, went inside the assembly building to meet with representatives who had two weeks’ notice of the visits. Not one legislator was available. Not one. The people who receive salaries to deal with pardons for citizens unjustly imprisoned were not available to discuss the process with their constituents. Herrera and Muñoz did learn that in another week the human rights committee will meet to decide if they will have a meeting with them. In the meantime, the chants outside continued:

Every hour, every day is a torture for the 17.

And:

The voice of women is the voice of the people.

News Law and Policy

Freed From a Post-Miscarriage Prison Sentence, El Salvador Woman Could Face More Time Behind Bars

Kathy Bougher

Maria Teresa Rivera was convicted of aggravated homicide in 2012 following an obstetrical complication during an unattended birth the previous year, which had resulted in the death of her fetus. On May 20, Judge Martín Rogel Zepeda overturned her conviction. Now, however, a legal threat could return her to prison.

Read more of our coverage on the campaign for Las 17, the 17 Salvadoran women imprisoned on abortion-related charges, here.

Two months ago, Maria Teresa Rivera was released from a 40-year prison sentence after spending more than four years behind bars. Rivera was convicted of aggravated homicide in 2012 following an obstetrical complication during an unattended birth the previous year, which had resulted in the death of her fetus. On May 20, Judge Martín Rogel Zepeda overturned her conviction. Now, however, a legal threat could return her to prison.

Rivera is part of the group known as “Las 17,” Salvadoran women who have been unjustly convicted and imprisoned based on El Salvador’s highly restrictive anti-abortion laws.

The government-employed prosecutor in Rivera’s case, María del Carmen Elias Campos, has appealed Rogel Zepeda’s decision overturning the original 2012 conviction and allowing Rivera to return to her now-11-year-old son. If the appeal is granted, Rogel Zepeda’s decision will be reviewed by a panel of justices. An unfavorable decision at that point could lead to a new trial.

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“I just don’t understand the prosecutor’s motivation for this appeal,” Rivera told Rewire in an interview. “We are very poor, and there is no one else but me to provide income for our family.”

According to Rivera’s attorney, Victor Hugo Mata, the government tends to require “preventive imprisonment” of the accused during the trial process, which could last months or years. This “preventive imprisonment” could begin as soon as the panel approves an appeal.

Although “the law clearly allows the prosecution to appeal,” Morena Herrera, president of the Agrupación Ciudadana por la Despenalización del Aborto, told Rewire in an interview, “This appeal that questions the decision of the court that granted [Rivera] her freedom is not looking for the truth.”

Herrera pointed out that the witness for the prosecution, a government forensic specialist who performed the fetal autopsy, determined that the cause of fetal death was perinatal asphyxia. “At the trial the prosecutor’s own witness told the prosecutor that he could not accuse a person of a crime in this case of perinatal asphyxia,” Herrera recounted.

“So, if her own witness spoke against [the prosecutor] and said she was not correct, it seems to me that this appeal … is proof that the prosecutor is not seeking either justice or the truth.”

Hugo Mata explained to Rewire that the prosecutor’s appeal asserts that Judge Rogel Zepeda “did not employ the legal standard of ‘sana crítica,’ or ‘solid legal judgment’ in evaluating the evidence presented.”

Hugo Mata vigorously contests the prosecutor’s allegation, noting that the judge’s written decision went into significant legal detail on all the issues raised at the hearing. He believes that a responsible court should see that “there was nothing capricious or contradictory in his highly detailed and legally well-founded decision.”

The three-judge panel has ten working days, or until approximately July 12, to render a decision as to whether to grant the initial appeal, although such deadlines are not always rigidly observed.  If the panel does not grant the appeal, the decision to overturn the conviction will stand.

The Agrupación, including Hugo Mata, believes that the appeals panel will be swayed by knowing that the case is receiving widespread attention. As part of a campaign to bring attention to the appeal process, the Agrupación has set up an email address to which supporters can send messages letting the court know that justice for Rivera is of national and international importance.

“What most worries me is leaving my son alone again,” Rivera told Rewire. “I was forced to abandon him for four and a half years, and he suffered greatly during that time. He is just beginning to recover now, but he never wants to be apart from me. He tells me every day, ‘Mommy, you’re never going to leave me again, are you?’ I had to tell him about this appeal, but I promised him everything would be all right.”

“I was abandoned by my mother at the age of five and grew up in orphanages,” Rivera concluded. “I don’t want the same life for my son.”

News Human Rights

Judge Overturns Homicide Conviction of El Salvador Woman Jailed After a Miscarriage

Kathy Bougher

Like dozens of other women in El Salvador, where abortion is completely illegal, Maria Teresa Rivera faced criminal charges in 2012 after experiencing obstetric complications.

Read more of our coverage on the campaign for Las 17, the 17 Salvadoran women imprisoned on abortion-related charges, here.

El Salvador trial court Judge Martín Rogel Zepeda on Friday overturned the 40-year prison sentence of Maria Teresa Rivera, who was convicted of aggravated homicide four years ago after experiencing a miscarriage in November 2011.

Rivera’s special session trial, which revisited her original 2012 conviction and sentence, began May 11. It resumed Friday after a weeklong recess to accommodate a key prosecution witness, a government forensic medicine specialist.

Like dozens of other women in El Salvador, where abortion is completely illegal, Rivera faced criminal charges after experiencing obstetric complications. In Rivera’s case, an unattended, unexpected labor resulted in the death of the fetus; an eventual autopsy report listed its cause of death as “perinatal asphyxia.” As previously reported by Rewire, Judge José Antonio Flores “interpreted the autopsy report to mean that Rivera had carried out an intentional criminal act,” ultimately convicting her of aggravated homicide.

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Witnesses for the May 11 defense included four physicians who helped clarify a major source of confusion throughout the legal process over the use of the term “perinatal asphyxia.” In medical terms, they explained, it is a condition—the inadequate intake of oxygen by the fetus—that is an unfortunate cause of death, but which can occur naturally during the birth process. The person giving birth does not cause the death.

According to those present at the trial, the government-employed forensic medicine specialist testified Friday that there was no certainty as to how the fetus died of perinatal asphyxia or evidence that Rivera had done anything intentional to cause the death. Alberto Romero from the Agrupación Ciudadana por la Depenalization del Aborto, the Salvadoran feminist organization that has supported Rivera since her charge and conviction, noted to Rewire via phone and email the “professionalism and clarity” of the specialist.

In a courtroom packed with Salvadoran and international supporters, Rivera addressed the judge directly as part of the closing statement of her attorney, Victor Hugo Mata. According to Morena Herrera, president of the Agrupación, the room was absolutely silent as Rivera asked the judge to grant her freedom not just for herself, but also for her 10-year old son, whom she had not seen in three years. She showed the judge his photo and told him his name.

After a 30-minute recess, during which additional supporters outside on the streets chanted “freedom for Teresa,” the judge delivered his verdict: There was no evidence that Rivera had murdered her infant son, meaning the original verdict should be overturned.

As Rivera’s attorney Mata noted in the first part of the trial on May 11, the witness from forensic medicine who spoke Friday was also subpoenaed to appear at her original trial in 2012, but did not do so. Mata noted to the judge that if the specialist had testified at that trial, perhaps he would have been able to clarify the misconceptions about “perinatal asphyxia.”

If that had been the case, Romero said to Rewire after Friday’s trial, “perhaps Rivera would have been absolved at that time.”

According to Herrera, there are still about 25 women imprisoned in El Salvador under similar circumstances to Rivera’s. “Most of the imprisoned women experienced judicial errors similar to those that occurred in Maria’s Teresa trial,” she said.

We continue to work to change those medical and legal protocols for women already charged,” she told Rewire. However, she noted, “We also need to work to change the anti-abortion laws that criminalize abortion and also obstetric emergencies, and thereby set off the events that cause women to be unjustly imprisoned.”

After four years behind bars, Rivera left the courthouse on Friday a free woman. “Thanks so much to everyone who has helped me,” she told Rewire by phone. “What’s most important is that I’ve hugged my son again.”