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.

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”

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.”

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