Analysis Human Rights

El Salvador Legislature Denies Pardon to One of ‘Las 17’—But Hope Isn’t Lost (Updated)

Kathy Bougher

The El Salvador national legislature had the opportunity on January 16 to pardon a woman named Guadalupe, who was convicted of aggravated homicide against her newborn when, in fact, she had suffered obstetrical complications. Her petition fell one vote short of approval, but the story isn't over.

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

UPDATE, January 21, 10:40 p.m.: On Wednesday evening, the Salvadoran National Assembly approved Guadalupe’s petition with 43 votes. Her petition will now go to President Salvador Sánchez Cerén for ratification, a process that advocates expect to go smoothly.

The El Salvador Legislative Assembly had the opportunity on January 16 to correct a grievous wrong committed against Guadalupe, who was convicted of aggravated homicide against her newborn when, in fact, she had suffered obstetrical complications. In April 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 her, along with 16 other women. The legislature almost granted Guadalupe her pardon last week—but her petition fell one vote short of approval. However, the story is not over; the Assembly could discuss Guadalupe’s pardon again as early as Wednesday.

According to court records, which Agrupación has shared with Rewire, seven years ago, Guadalupe was 18 years old and earning $80 per month as a domestic worker, living in a small room without electricity in her employer’s home. After she was raped, she became pregnant; eventually, she gave birth alone in the early morning in her tiny room. She says she didn’t know she was about to give birth and was frightened to ask for help because she feared losing her job. According to Guadalupe, the baby was born dead. Despite hemorrhaging heavily, she got up and worked through the morning. When the hemorrhaging had not slowed by noon, her employer took her to the local public hospital, where she waited until 8:20 p.m. to be seen by a doctor. When the doctor noted the heavy bleeding, hospital personnel accused her of abortion—illegal under all circumstances in El Salvador—and called the police, who detained her.

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The prosecutor amended the charges to aggravated homicide, which carries a much longer sentence than abortion. She was found guilty, in spite of serious inconsistencies in the report from the Government Office of Forensic Medicine. For example, officials said in the report that the cause of death was “undetermined,” and that there were “no signs of trauma in the body of baby.” Nevertheless, the same report maintained “the death was violent.”

In addition, the autopsy demonstrated a congenital anomaly sometimes associated with spontaneous fetal death, but the forensic pathologist did not explain what effect that anomaly might have had on the death of the baby. When forensic medicine expert Dr. Gregory Davis, professor at the University of Kentucky, wrote an expert report on this matter for Agrupación, he stated, “There is no way to say that the baby of Guadalupe … was born alive. It could have easily been born dead (stillbirth).” Nevertheless, Guadalupe was still sentenced to 30 years in prison.

As Rewire reported earlier this month, out of the 17 petitions for pardons, only four have received the favorable recommendations from the Supreme Court that are necessary for their case to be heard in the legislature. Guadalupe’s was the first to be discussed and voted on at a plenary session on January 16.

Advocates told Rewire they had been hopeful that Guadalupe would receive some measure of justice. The December 23, 2014 positive recommendation from the Supreme Court, which members of the Agrupación read aloud in the plenary session, stated in part:

Not only powerful reasons of justice and equity [have been demonstrated], but also [reasons] of a judicial type related to fundamental rights and guarantees of the accused, such as the guarantee of the presumption of innocence while guilt has not been determined according to law. In the case of a reasonable doubt, that what is most favorable to the person be considered. It is recommended for these reasons that the pardon be granted.

In the national legislature, a simple majority of the 84 members is necessary to approve a pardon. Ultimately, 31 members of the left-wing FMLN party, nine from GANA, a smaller right-wing party, and two from smaller parties voted in favor of Guadalupe—so her pardon lost by one vote.

Overall, local activists feel that this setback stems from the inability of legislators, particularly fundamentalists, to relate to poor young women like Guadalupe. Alejandra Burgos, coordinator of the Salvadoran Network of Women Human Rights Defenders, told Rewire that during the debate on Guadalupe’s petition, members of the right-wing ARENA party loudly argued that the rights of the baby were the ones in danger and invoked details from other women’s stories as if they applied to Guadalupe.

Burgos and other advocates also expressed indignation that just before Guadalupe’s case, the legislature had approved another pardon for a man with health problems, who who had been convicted on clear evidence that he committed a double kidnapping. Meanwhile, Burgos pointed out, despite Guadalupe’s case’s unreliable evidence, her sentence was upheld.

Some legislators were also enraged on Guadalupe’s behalf. Lorena Peña, a FMLN representative, mentioned during the proceedings that Guadalupe’s mother was in the audience, hoping, as Burgos explained after speaking with her, to connect legislators to Guadalupe´s humanity. Peña posted on her Facebook page after the plenary session:

Today … a woman who has paid years in prison for a crime that according to the declaration of the Supreme Court cannot be proved to have been committed, cannot be pardoned. … A woman with scarce economic resources will always be devalued by these parties. Let´s hope this can be rectified and she can be pardoned! No more impunity!

Even so, as Burgos put it, “We left enraged and indignant, but the fight is not lost.” Right after the vote, one of the smaller party representatives—a woman who was actually the substitute for the regular representative that day—proposed sending Guadalupe’s petition back to the Justice and Human Rights Commission of the legislature to review it again. That proposal passed.

The commission met on Monday, January 19, with Jorge Menjivar of the Agrupación in attendance as an observer. He reported that of the eight members, the three ARENA members did not arrive, but the remaining five voted in favor of sending the petition back for another round in the national legislature—which could happen at any point in the next few days.

For now, Guadalupe’s freedom hangs in the balance, controlled, as Burgos sees it, by the personal beliefs of right-wing conservatives. “It was infuriating to see that there was evidence and there were judicial arguments,” she said. “Then we see the legislators refuse to listen and watch them vote according to their fundamentalist principles.”

According to Agrupación attorney Dennis Munoz, if Guadalupe wins her appeal, she will be the first woman in the country to be granted a pardon for an abortion-related case.

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