In El Salvador, there is a fine line between a miscarriage, an abortion, and the murder of a newborn baby.

This conceptual mix is manifested in the country's abortion law, which some consider to be the strictest in the world and recently led to 18-year-old Evelyn Beatriz Hernández being sentenced to 30 years in prison for “aggravated homocide”.

It all began on April 6, 2016 when Evelyn woke with pain in her back and went to her communal outhouse. There she lost two litres of blood, so her mother took her to the hospital. While she recovered, the police went to her home and found a dead baby at the bottom of the latrine. The question: was it an abortion, a miscarriage, or a homicide?

Evelyn is not the only woman to have faced this question in court. According to the Citizens’ Group for the Decriminalization of Therapeutic, Ethical and Eugenic Abortion, 129 women have been tried for abortion or aggravated homicide, and 49 were convicted.

Various groups believe that this recurrent problem has its origins in the country's strict anti-abortion laws. Women who want to procure an abortion legally cannot, so they risk their lives and are then imprisoned. And those who have obstetric complications are suspected of committing abortion or homicide.

Different versions of the case

According to the prosecutors, Evelyn knew she was pregnant but wanted to hide the pregnancy in order to get rid of the fetus. They first accused her of attempting abortion, but in the end she was convicted of aggravated homicide because the baby, at eight months’ gestation, was full term and the forensic evidence was sufficient to declare that it was alive at birth.

En la Vista Pública a cargo del Juzgado de Sentencia de Cojutepeque, se estableció con suficientes pruebas pericial, documental y testimonial, que la incriminada actuó con [premeditación], en contra de la vida de su hijo, porque incluso después de ingresar con hemorragia al Hospital “Nuestra Señora de Fátima” de Cojutepeque, el seis de abril del año dos mil dieciséis, y de diagnosticarle un parto vaginal intradomiciliar, negó que hubiere estado embarazada.

At the Public Hearing in the Sentencing Court of Cojutepeque, it was established with sufficient expert, documentary and testimonial evidence, that the accused acted with [premeditation], against the life of her child, because even after being admitted to “Nuestra Señora de Fátima” Hospital in Cojutepeque with haemorrhaging, on the sixth of April in the year two thousand and sixteen, and having been diagnosed as having had a home vaginal birth, she denied having been pregnant.

However, Evelyn has another version of the story. She testified that she was not aware of her pregnancy because she did not experience symptoms and her menstruation continued normally. This means that she was unable to prepare for her pregnancy and unknowingly increased the risk of miscarriage. Evelyn also claimed that she had been repeatedly raped by gang members. Nevertheless, these explanations do not carry legal weight as all abortions are prohibited in El Salvador, including for pregnancies resulting from rape.

Those who defended Evelyn, as well as feminist organizations, asserted that she was sentenced without any direct evidence. They pointed out that she was a victim of an erroneous judicial process based entirely on presumptions. They added that the forensic documents were inconclusive as they did not determine with certainty whether the baby died before or after birth. For Evelyn and the Salvadoran prosecution, this distinction is key. The prosecutors maintain the latter, which is why Evelyn was convicted of voluntarily killing her child. Her mother, with the help of the defense, is preparing an appeal.

International coverage

Evelyn's case is a complex one that has not only divided public opinion in El Salvador, but has also resonated internationally. However, the facts are difficult to clarify and it seems the international media did not help convey the nuance of the case, claiming that the woman was imprisoned for having a miscarriage or abortion. Tim, who blogs about ‘history, culture and analysis of El Salvador and the Salvadoran people’ explains this in his blog:

Most of the English language reporting is written for headlines and misses some of the complexities of the story. (…) Several English language news reports state that Hernandez was convicted for failure to seek prenatal care. Reading the various reports of this case (I was not in the courtroom), I think this is incorrect. There was testimony that a local health promoter came to check on her three different times because local people in the community were saying she was pregnant. She or her mother did not permit the health visit, but this was not alleged to be the cause of the fetal death. Prosecutors said this proved (a) Hernandez should have known she was pregnant, and (b) she refused the visits to cover up the fact that she was pregnant.

#JusticeForEvelyn

This controversy has given rise to the Twitter campaign #JusticeForEvelyn which seeks to revoke the court's decision. It is led by the Salvadoran association Las17 and has international support.

.@berthamariaD explica que el protocolo de autopsia consigna que la causa de la muerte es indeterminada #JusticiaParaEvelyn 1/3 — Las17 El Salvador (@Unaflorporlas17) July 13, 2017

@berthamariaD explains that the autopsy protocol confirms that the cause of death is undetermined #JusticeForEvelyn

Other groups emphasize the poverty of those convicted, the common denominator among the women accused of abortion or homicide in El Salvador. Blogger Virginia Lemus highlighted this in a harsh and sarcastic tone, using the latrine as a symbol of the misery of these girls in her article “sign of the latrine“.

Nadie parece notar que una y otra y otra vez la narrativa de las mujeres acusadas de homicidio –no de aborto, ni lo quiera Dios– en contra de sus fetos tiene como escenario brutalista y vulgar el baño público. No es uno con pastillitas olor lavanda tropical, toallas suavecitas gracias al poder del Suavitel Adiós al Planchado ni duchas con control de temperatura, no. Son fosas sépticas. Estas mujeres-monstruo, inmorales, capaces de matar a sus propios hijos, suelen tener como escenario el piso de tierra, la pared de bahareque, las lombrices reptando al fondo de la fosa.

No one seems to notice that time and time and again the narrative of the women accused of homicide –not of abortion, God forbid– against their fetuses takes place in the brutal and vulgar scene of the public bathroom. It is not a bathroom with tropical lavender-scented air freshener, towels softened by the power of ‘Suavitel No More Ironing’ [fabric softener] and showers with temperature control, no. These are latrines. These monster-women, immoral, capable of killing their own children, have as their backdrop a dirt floor, mud walls, worms slithering in the bottom of the cesspit.

Finally, members of civil society also seek to highlight the fact that Evelyn's rapists continue to walk free. They assert that the prosecution should pursue the perpetrators of these sexual crimes, and not her:

La violaron, parió un bebé muerto que no sabía que tenía y ella va a la carcel, no su violador. #JusticiaParaEvelyn ¡ESTO ES INACEPTABLE! pic.twitter.com/0d1httz1LJ — Lizarrrg (@athvant) July 8, 2017

They raped her, she gave birth to a stillborn child she didn't know she had and she goes to jail, not her rapist. #JusticeFor Evelyn THIS IS UNACCEPTABLE! Image headline: Rape victim will spend 30 years in prison for losing her baby

Image text: Evelyn Beatriz Hernández Cruz, 19 years old, gave birth to a stillborn baby after months of sexual abuse. She was sentenced to three decades in prison under El Salvador's anti-abortion laws…

This is why we demand #JusticeForEvelyn Image text: The Salvadoran State asserts that she, Evelyn, killed a human being, and thus convicted her of aggravated homicide. The defense alleges that this is not true, that Evelyn suffered a miscarriage. In the face of reasonable doubt, the State does not listen to reason and convicts her. She, a young woman of 18 years of age, living in poverty in rural El Salvador, where the minimum wage is about 150 dollars a month, who had been raped by gang members, is the only one deemed guilty and criminal.

The impunity of perpetrators of gender-based violence is not unusual in El Salvador, the country with the highest rate of femicide in the world. Most cases of domestic violence, rape and femicide are not reported, and of those that are only one percent result in convictions.