UPDATE, December 19, 11:00 a.m.: At a press conference Tuesday, Imelda Isabel Cortez Palacios’ defense team reported that the judge said it was impossible to conclude that Cortez had committed any crime, including abandonment. As attorney Ana Martinez noted, “This case gives hope to other women who are accused of homicide in cases of obstetric emergencies and unattended births, who have complications and illnesses, who live with poverty and marginalization.”
Cortez was able to hold her daughter for the first time on Monday.
UPDATE, December 17, 4:00 p.m.: Imelda Isabel Cortez Palacios was absolved of all charges on Monday and is freed from prison.
In April 2017, Imelda Isabel Cortez Palacios gave birth without assistance into the latrine behind her small rural home. She bled heavily, fainted, and was taken to a hospital. The baby’s father was Cortez’s own stepfather; she says he had been repeatedly raping her since she was 12 years old.
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Her daughter, now 20 months old, was born healthy and survived the fall into the latrine. But as Rewire.News reported in April, Cortez was accused of having an abortion—illegal under all circumstances in El Salvador. The charge was soon amended to attempted aggravated homicide.
On Monday, Cortez will go on trial. She faces the possibility of 20 years in prison.
“Imelda’s case functions as … a clear picture of the consequences of the criminalization of abortion,” said Mariana Moisa, communications and policy specialist with the Agrupacion Ciudadana por la Despenalización del Aborto (the Citizen Group for the Decriminalization of Abortion).
The Agrupacion has worked since 2009 to change the anti-abortion law and to free from prison women who have been charged with crimes after obstetric emergencies. “She’s a young woman … with few resources, but who suffered violence from the age of 12, and then had to confront an obstetric emergency.”
Cortez has been in custody since the day she gave birth. In the months leading up to her trial, local and international human rights groups have noted the problems with her case.
“If a person has not been convicted, the person should not be in prison, unless they run the risk of leaving [the country]. In the case of Imelda, this has not been proven. This may mean that the State of El Salvador may be sued for not respecting Imelda’s rights, ” Marcela Martino, a spokesperson for the Center for Justice and International Law (CEJIL), told Rewire.News.
As Cortez waited behind bars, the psychological assessment the defense had requested for a preliminary hearing was canceled and rescheduled nine times because there were no resources to transfer her from the prison to the Institute of Legal Medicine. Because of that, the hearing was suspended seven times.
The hearing was finally held on September 4 of this year. As recounted later by the Agrupacion, the defense cited medical examinations showing that Cortez took no action to cause the birth and that the newborn baby had no signs of being deliberately harmed.
Salvadoran law places the responsibility on the prosecution for investigating and presenting evidence that could condemn as well as exonerate the accused. For those accused of aggravated homicide, the prosecution must also demonstrate the accused’s intent to commit the crime.
Ana Martinez, a member of Cortez’s legal team, described the central argument of the prosecution in an interview with the news service EFE. “The prosecutor contends that Imelda gave birth and then threw the baby in the septic tank, but there is not one single witness to confirm this.”
She added that the Public Security Ministry included testimony from the doctor who treated Imelda at the hospital and “violated doctor-patient confidentiality by interrogating and then filing police charges” against Cortez. The prosecution, she said, “only has evidence from witnesses who were not present at the moment that Imelda suffered the obstetric emergency.”
Still, the judge elected to proceed with the trial. He also did not take into consideration Cortez’s mild cognitive disability, the sexual violence she claims to have faced, or the DNA results that confirm her stepfather’s paternity of her baby.
“This case illustrates what the denial of the presumption of innocence means for women. Imelda was immediately [seen as] guilty. There was no investigation,” Moisa said. “This exposes the deficiencies of the whole justice system. The Salvadoran justice system has not fulfilled its responsibilities.”
By contrast, Martino noted that Cortez’s stepfather was only arrested and charged with aggravated assault of a minor earlier this year after public pressure.
In an interview with journalist Metzi Rosales Martel a few months after the arrest, Cortez—who says she didn’t know she was pregnant at the time she gave birth—recounted the details from her perspective.
“The doctor at the hospital asked me what I had done with the baby. I told her I didn’t know, that I had gone to the bathroom since I was suffering from colon problems, and I felt something detach from below. [The doctor] told me she didn’t believe me. She accused me of having thrown the baby.”
According to what Cortez told Rosales Martel, her stepfather visited her a couple of days later in the hospital. Other patients, she said, heard him threatening her if she said anything to her mother about what he had done. They told a nurse, who talked with Cortez and encouraged her to talk with the police, which she did. By this time, Cortez had also confided in an aunt who had visited her. However, her stepfather was not detained until the following year.
Although Cortez’s case has proceeded with great public scrutiny, her stepfather’s defense lawyer requested a gag order, which was granted in October 2018.
Earlier this year, Dubravka Šimonović, the United Nations’ special rapporteur on violence against women, along with the Committee of Experts of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, also registered concern with Cortez’s case.
“These facts highlight the clear legal limitations existing in El Salvador in relation to the treatment of women with obstetric complications in their pregnancies, who have to face criminalization by the State, institutional and obstetric violence by the health services, and lack of access to justice in these cases. In addition, the postponement of the hearing and consequently, the prolongation of the pre-trial detention, aggravate the violation of Imelda’s human rights to access justice,” said Šimonović in a statement that urged the government to release Cortez.
The trial was originally scheduled for November 12. Cortez’s family, defense attorneys, expert witnesses from around the country, national and international supporters, embassy representatives, activists, media representatives, and others traveled long distances to arrive at the court for the 9 a.m. hearing. Cortez was transported on time. Activists were chanting outside in the street. The only person who didn’t show up was the prosecutor who called in sick with a sore throat.
The trial was rescheduled for December 17 with a second day on December 20, leaving a weeping Cortez with another 35 days in prison.
Asked by Rewire.News what she thought would happen at the trial, Moisa responded, “If the prosecutor were to drop the charges, and she were to go free, that would set the precedent that things can change for women, and that women can have more access to justice.”
“Unfortunately, I fear that the Salvadoran government will reaffirm the misogyny and hatred the state has against women, especially those who confront these kinds of obstetric problems that Imelda confronted,” Moisa continued, “and it will convict her.”