On April 17, 2017, Imelda Isabel Cortez Palacios, then 19, gave birth to a baby girl in the latrine at her family’s home in the small community of Jiquilisco, La Paz, El Salvador. Cortez says she did not know she was about to give birth; instead, she told her lawyer, in the latrine she “felt something come loose.” She screamed for help before she fainted and started to hemorrhage heavily.
Her mother took her to the local public hospital, where medical personnel determined she had given birth. Because there was no baby or fetus present, they notified police. At the home, the baby was rescued from the latrine without any injuries.
Cortez was charged with attempted aggravated homicide, although no evidence was presented that she had taken any action to endanger or attempt to murder the baby. She has been in jail for the last year, with a preliminary hearing scheduled for April 30.
Cortez is just one of dozens of women who have been victimized under the legal climate in El Salvador, where abortion is banned in all cases and where women are imprisoned following miscarriages and other birth complications. But her case has taken on greater significance because at the hospital, she informed health professionals that her stepfather had raped her repeatedly from the age of 12 until 19. It then took almost a year to get the DNA test that proved Cortez’s stepfather had fathered her baby; prosecutors have continued to stall on obtaining other necessary evidence.
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Cortez’s lawyer Berta María Deleón and the local reproductive rights group Agrupación Ciudadana por la Despenalización del Aborto emphasize that Cortez deserves protection rather than criminalization by the legal system.
As Deleón told Rewire.News in an on-the-ground interview, Cortez is “not just a victim of the sexual violence perpetrated by her stepfather, but also a victim of state and institutional violence. She must be recognized as such by the Salvadoran judicial system.”
While hospitalized, Cortez told a social worker that her stepfather had raped her; he, she said, was the father of the newborn girl.
This is where the story “should have gone much differently,” Deleón told Rewire.News.
Although the person in whom Cortez confided did document the conversation, the rape accusation received no response for months.
Instead, prosecutors acted quickly to charge Cortez with attempted aggravated homicide and incarcerated her, even though no concrete evidence against her has been presented to date. The baby had no injuries; there were no witnesses to any crime, nor any indication that Cortez took any action to harm the child.
Deleón attempted multiple times to get a DNA test performed on the baby. The judge in Cortez’s case initially ordered one, but the prosecutor intervened to have the order revoked. Finally, months after Cortez’s initial allegation, the test was conducted on October 31.
The results reached Deleón in March, showing that Pablo Henriquez, Cortez’s stepfather, is the father of the baby.
“The DNA test corroborated what Imelda had been saying and showed that she was a victim of a crime,” Deleón told Rewire.News.
At that point, a judge issued an arrest warrant, and Henriquez was taken into custody. He is currently charged with two crimes, one relating to rape of a minor and the other to rape of an adult.
Henriquez’s preliminary hearing was held on March 22. Deleón requested that the criminal process proceed, and that he be held in pretrial detention. Both requests were granted.
Cortez is now part of two related criminal cases: one in which she is incarcerated as the accused, and the other in which she is the alleged victim. It’s unclear whether the prosecutor will include the results of the DNA test in the evidence that she presents to the court; if she doesn’t, Deleón said that she will use other legal measures to ensure it is introduced.
Victimized, Then Arrested
In November 2016, Deleón told Rewire.News, Cortez fainted during her ninth-grade graduation. The school sent her to a public health clinic, where the medical personnel conducted tests and told her and her mother that she was pregnant. Her mother claimed not to have known. But, Cortez said, they never spoke again of the subject.
Deleón believes that interaction was part of Cortez’s difficulty in assimilating the reality of the pregnancy. Cortez told Deleón that when she was giving birth, she still didn’t believe she was pregnant and had no idea what to do. According to Deleón, Henriquez had told Cortez that at his age, now 70, he was too old to impregnate her. In addition, Cortez experienced bleeding at times, which she took to be menstruation.
It is also clear to Deleón that the family’s living situation—a small, one-room home with curtains for dividers—made it practically impossible to not know that abuse was taking place.
Deleón and Agrupación attorney Angelica Rivas believe that Cortez urgently needs a comprehensive psychological exam in order to determine why she didn’t believe she was pregnant, the emotional harm she has experienced, and what kinds of support she should be provided. The findings will be crucial in her criminal defense.
Cortez’s psychological exam has been scheduled eight times, according to Deleón, but postponed each time because she was not transported from the prison to the testing location. The Salvadoran Institute for Forensic Medicine sent a psychiatrist to the prison to conduct testing, but her attorneys say the test is incomplete: It focuses only on determining whether or not the woman can distinguish right from wrong and is thereby eligible to be prosecuted.
Under Salvadoran law, the prosecutor has the responsibility to search for evidence that might determine guilt, but also evidence that might determine innocence. Deleón says that in addition to blocking the DNA tests and refusing to provide expert psychological exams, the prosecutor has not carried out a thorough study of Cortez’s home environment and social situation. Rivas says both are essential in order to understand the family and community dynamics behind the alleged assault and Cortez’s pregnancy.
“We need to understand why communities normalize the presence of ongoing sexual violence, especially toward girls and adolescents,” Rivas said at a press conference on April 5.
Until the evaluations are administered, Deleón says that she will try to delay the trial. Because, in part, of the situation with the prosecutor, Deleón told Rewire.News, “We are absolutely certain that if this legal team were not leading her defense, if she had a public defender, by now she would have been convicted and serving a long prison term.”
A Nationwide Epidemic
Deleón explained that what Cortez faces illustrates the intentional institutional barriers that girls and women face when they make rape accusations in El Salvador. According to an extensive study on child sexual abuse in El Salvador published by journalists Maria Luz Nóchez and Laura Aguirre in 2017, the state prosecutor’s office only took about a quarter of the child sexual abuse accusations it received to court. “Out of the total of the rape accusations between 2013 and 2015, only 10 percent ended with a conviction,” they wrote.
This represents a countrywide crisis: In a detailed study of pregnancies in adolescents and girls published by the United Nations Population Fund in 2016, researchers found that roughly 80 percent of reported cases of sexual violence against women occurred in girls and women 19 or younger. In about 79 percent of those cases, the aggressor was a relative or acquaintance of the victim.
Rivas pointed out the national office of the Prosecutor General of the Republic is working on a project right now to develop improved policies around gender equity.
“We congratulate them for their work on developing these policies,” she said at the press conference. “But policies must go beyond documents, pieces of paper that are shared in a meeting room. They must be translated into the day-to-day work of everyone in the prosecutor’s office and into the everyday lives of women like Imelda.”
“Now we insist that the prosecutor’s office does its job and works to repair the harm done from a human rights and gender perspective,” Rivas said.
Rivas links Cortez’s story with the need to decriminalize abortion in cases of rape, which is currently illegal. Proposals to do so are currently on the table in the Salvadoran legislature.
She argues that patriarchal perspectives govern how justice is administered in the country, leading to women like Cortez being incarcerated after poor birth outcomes. “We see that this case raises so many questions that show that investigations are done poorly and superficially. So many repetitive issues arise in case after case,” she said at the press conference.
Deleón added, “We need expert studies on the trauma in these cases. We know the stories because women tell us over and over. But we also need the scientific studies.”
Pointing out that women are often arrested after giving birth in latrines, Rivas asked, “Why do women continually need to explain to judges who do not want to listen why they feel the need to defecate when they are about to give birth? There is a scientific, medical explanation that judges and prosecutors should know.”
Rivas continued, “Why do judges not understand why so many people in El Salvador have outhouses and latrines rather than porcelain toilets? Why do they not understand the conditions under which people live, instead of judging them for those conditions? Why do they not understand how poverty can impact women and increase the chances of anemia or preeclampsia or other complications during pregnancy?”
As with Cortez, she said, “If a woman arrives and has given birth, but the baby is not present, the assumption is that ‘she killed it.’ She is blamed automatically and the system moves quickly to condemn her … but if she says she was the victim of sexual abuse, the system delays for a year, as it did with Imelda.”
Overall, Rivas says, there has been a general failure on officials’ part to act on rape and other accusations, to conduct thorough investigations and introduce all available evidence on behalf of women victimized by the system, and to respect the presumption of innocence until proven guilty.
“We are not asking for favors,” Rivas concluded. “We’re asking them to follow the laws.”