Analysis Human Rights

Salvadoran Council Uses Poverty to Justify Keeping ‘Las 17’ in Prison

Kathy Bougher

When determining whether to pardon the Salvadoran women incarcerated on abortion-related charges, the country's National Criminology Council gave "unfavorable" recommendations for 12 of them based on factors such as "scarce economic resources."

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

In El Salvador, where abortion has been illegal under all circumstances since 1997, women accused of terminating their pregnancies can receive prison terms of up to 40 years. Such is the case with “Las 17,” 17 women who have been incarcerated on charges of purported aggravated or attempted homicide as a result of stillbirths, miscarriages, and other obstetrics-related complications.

On April 1 last year, the feminist group Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) began the legal process to request pardons for Las 17. As part of that process, a Salvadoran governmental body called the National Criminology Council reviewed each woman’s case and gave a written recommendation to the Supreme Court as to whether she should be released.

The council’s recommendations, which Agrupación shared with Rewire after obtaining them from Amnesty International, display a shameful misogyny reflecting the fundamentalist influences that have gripped the Salvadoran government for decades.

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In addition to a few administrative personnel, the council is comprised of a psychiatrist, a psychologist, an educator, a lawyer, a social worker, a sociologist, and a physician, all of whom met with each of Las 17 and reviewed her records. Afterward, the council returned “unfavorable” recommendations for 12 of the women, rating them as “medium” in “criminal capacity” and “index of danger to society.” Although the Supreme Court could, in theory, override these recommendations, activists say that is highly unlikely. After the court issues a decision, the legislature and the president will then make their own determinations.

Three of the only four women who received “favorable” recommendations for pardons were those who had been convicted of attempted aggravated homicide. That is, their babies did not die; these women gave birth under extremely difficult conditions, which led the authorities to accuse them of trying to murder their children. The report on the fourth woman who received a favorable recommendation, convicted of aggravated homicide after her stillbirth, does not differ significantly from the reports of the 12 who received unfavorable ones. (The council’s report for the final woman out of the 17 remains incomplete.)

Local activists fear that the council’s methodology will obstruct the possibility of freedom for Las 17. Morena Herrera, president of Agrupación, told Rewire that the council’s reports were a “national shame.”

“The poor quality of the reports and the lack of professionalism” of the interdisciplinary team, she said, “reflects badly on the possibilities for justice for the 17 women, as well as on the possibilities for justice for the country as a whole.”

Advocates expressed dismay at the criteria used to determine whether the women were “a danger to society.” For example, the Criminology Council listed evidence of structural poverty (“lack of economic resources,” “unskilled work,” and “low educational level”) as reflections of the women’s propensity toward future criminal behavior. The link between poverty and the circumstances of Las 17’s imprisonment is not a new one; in fact, Agrupación has previously pointed out how the two are intrinsically related. However, the council’s reports suggest that the women themselves were somehow responsible for that environment.

In a letter to the Minister of Justice and Public Security, Amnesty International Director of the Americas Erika Guevera Rosas declared these so-called indicators of criminality to be discriminatory and requested that the government “reinitiate” the process.

Such misplaced blame was a common theme throughout the justifications for “unfavorable” recommendations. Several reports argued, for example, that “non-intact families”—meaning a family in which a male head of household was not present—were also predictors of future criminality. Other reports suggested a woman’s history of intra-family violence on the part of a father, stepfather, or male partner signified she herself was likely to be a danger to society.

Furthermore, “defenselessness of the victim”—meaning the fetus or stillborn infant—was listed as a negative factor for almost every woman. This echoes the perspective of Salvadoran fundamentalists, who have frequently claimed in the media, churches, and statehouses that Las 17 are all heartless assassins who deliberately chose to murder their own babies, rather than women who suffered obstetric complications over which they had no control.

Independent Points of View

The flaws in the Criminology Council’s reports seem even more egregious when contrasted with three independent ones written by U.S. and Salvadoran medical, academic, and legal experts. The three reports, arranged by allies of the Agrupación, were written independently of the Criminology Council reports and were not based on any knowledge of their content. However, they provide insightful contrasts to the council’s documents.

In one detailed analysis, for example, published in the Salvadoran alternative academic online publication El Faro, Harvard sociologist Jocelyn Viterna and Salvadoran attorney Jose Santos Guardado Bautista examined the women’s original trials, explaining that the government had denied them the presumption of innocence supposedly mandated by Salvadoran law:

First, the Constitution of El Salvador guarantees that, “Every person accused of a crime will be presumed innocent until proven guilty” … Second, the Salvadoran Penal Code guarantees that “In the case of doubt, the judge must find in favor of the defendant.” And third, the Organic Law of the Attorney General of the Republic states that the Attorney General must pursue the truth, not the prosecution of the defendant … We should be impartial and act with total objectivity, ensuring only that the law is applied correctly.

In the case of Las 17, Bautista and Viterna asserted, “these three rights have been systematically violated.”

“In each of these cases, at each stage of the trial, the State aggressively pursued the prosecution of the mother rather than the pursuit of truth, beginning at the time of arrest and culminating at the time of conviction,” they continued.

This automatic assumption that the women were guilty was further reflected in the council’s recommendations that the prisoners be denied pardons based on their refusals to “confess.” In some reports, the council noted, “There is no record of participation in the treatment programs that would help her to overcome the deficiencies that led her to commit the crime.” The possibility that a woman was unjustly convicted, or that anything in her legal or medical records could be inaccurate or incomplete, was evidently inconceivable.

However, the expert reports provide extensive evidence of the strong possibility of grave errors in the investigative process. For example, as reported previously in Rewire, Dr. Gregory Davis explained in the second expert report that the “float test,” which scientists determined to be invalid more than 100 years ago, was used in at least eight of the women’s cases to “prove” that the baby was born alive and then murdered by its mother.

Furthermore, advocates say, the council did not give adequate weight to the women’s perspectives on their stories. In a third expert report arranged by Agrupación’s allies, Dr. Christine Curry and Dr. Jodi Abbott, two American obstetrical and gynecological specialists with 33 years’ combined experience, made the case for believing the women’s stories that they had not attempted to terminate their pregnancies. They write:

In the majority of these cases, the accused women argue that their fetus was stillborn or died shortly after birth due to pregnancy complications.

We find that, in the large majority of the cases, the women’s testimonies are indeed medically defensible. There are several potential medical explanations that correspond well with most women’s testimonies, reported health, and the facts of the case. Such plausible medical explanations call into question findings of aggravated homicide.

In addition, Abbott and Curry addressed the link between poverty and obstetric complications, reiterating the previous assertions made by Agrupación:

Even in a resource-rich nation like the United States, poverty is highly correlated with premature delivery, fetal birth defects, malnutrition, anemia, and poor fetal growth.

Poor women, especially those who may be malnourished or anemic, have high-risk pregnancies by definition, and are especially likely to suffer from preterm labor, intrauterine growth restriction or fetal complications.

What Happens Now?

Under Salvadoran law, it should take no more than three months for the Supreme Court, the legislature, and the president to complete the legal process for pardons. Ten months into Las 17’s cases, however, there has been little definitive action.

According to Agrupación’s Herrera, although the Supreme Court has discussed the petitions, it has only sent one recommendation onto the legislature: that for a woman named Mirna, who had been sentenced to 12 and a half years in prison for attempted aggravated homicide. Last October, the Supreme Court approved her petition for a pardon and forwarded it to the legislature. However, the legislature then took no action. And because Mirna’s prison sentence ended last December, legislators are now off the hook.

In the meantime, Agrupación has delivered all three expert reports to each Supreme Court magistrate and each member of the legislature. Late last year, it also published a paid ad, “Why Are We Asking for Freedom for the 17?” with excerpts from the reports in mainstream and alternative print newspapers. It remains to be seen if those authorities have actually read or seriously considered these expert opinions.

As of now, though, 16 of Las 17 begin another new year in prison.

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