Evelyn Beatríz Hernández Cruz gave birth in a toilet and was initially jailed for 33 months before successful appeal

This article is more than 1 year old

This article is more than 1 year old

A rape victim who delivered a stillborn baby as a teenager is facing decades in prison for aggravated homicide as prosecutors in El Salvador seek to prove she deliberately induced an abortion.

On Thursday, Evelyn Beatríz Hernández Cruz, 21, from a poor rural family in Cojutepeque, will go on trial for the second time in a case that highlights the aggressive criminal persecution of Salvadoran women who suffer obstetric complications.

It is also the first trial since President Nayib Bukele was elected in June, six months after observing of the case involving Imelda Cortez – who was charged with attempted murder after giving birth to her abuser’s baby – that no woman should be jailed for suffering an obstetric emergency.

Hernández says she was raped in 2015, during her first year of college. On 6 April 2016, Hernandez, aged 18, entered the outside latrine at her family home suffering diarrhoea and severe abdominal pain. She gave birth to a stillborn boy, and lost consciousness due to heavy bleeding.

Hernández was found passed out and covered in blood by her mother, a domestic worker, who took her to the nearest public hospital without realising her daughter had suffered an obstetric emergency.

At the emergency room, medical staff called police and prosecutors. Three days later, she was transferred to the women’s prison to await trial for deliberately killing her unborn baby.

Hernández has always insisted that she did not know she was pregnant, and occasionally menstruated after being raped.

The medical coroner recorded aspiration pneumonia as the cause of death, having discovered meconium, faecal matter, in the baby’s lungs and stomach.

Despite the autopsy results, in July 2017 Hernández was sentenced to 30 years in prison for aggravated homicide.

She was freed in February, however, after serving 33 months in an overcrowded jail, when an appeal judge quashed the conviction on the grounds that the evidence presented at trial did not prove Hernández intended – directly or indirectly – to harm the foetus.

Prosecutors will now retry Hernández on the same charge.

“Why? Because in El Salvador all women are considered second-class citizens, and poor vulnerable women like Evelyn, third-class citizens, so the full weight of the justice system is thrown at them regardless of the evidence,” said Paula Avila-Guillen, director of Latin America initiatives at the New York-based Women’s Equality Centre.

El Salvador is a deeply conservative country of 6 million people, where church leaders hold significant sway over public opinion and policies.

Abortion has been illegal in all circumstances since 1998, when legislators from across the political spectrum voted to strip women of their reproductive rights without any public debate or medical consultation about the consequences.

Dozens of women have since been prosecuted for homicide and manslaughter after suffering an obstetric emergency like a miscarriage or still birth.

Like Hernández, the vast majority are poor single rural-dwellers convicted on tenuous evidence. In many cases, the women were survivors of sexual violence and did not realise they were pregnant.

Violence against women is endemic in El Salvador, with one woman killed every 15 hours, according to figures collected by Ormusa, a gender crime observatory. In 2018, 60% of recorded sexual violence cases involved girls aged 12 to 17.

In recent years, public opinion on abortion has shifted. But despite growing support for allowing access to abortion in circumstances such as rape, incest or if the woman’s life is at risk, hopes of change were dashed in 2018 when a legislative bill to ease restrictions failed at the last hurdle.

“It was the best window of opportunity for reform,” said former legislator Johnny Wright, who sponsored the initiative. “We had the votes, we had international support, we had members of government openly making the case for reform … but as word spread, so did lobbying which got to those worried about re-election.”

Hernández’s trial will test Bukele’s commitment to tackling the ever increasing miscarriages of justice.

Wright, leader of new political party Nuestro Tiempo (Our Time) and one of the country’s few openly pro-choice politicians, believes the president, who is anti-choice, should use his popularity to swing the debate toward decriminalisation.

“Why does our political and justice system keep persecuting these women? Maybe the cruel punishment of certain women reflects the violent nature of our society … it’s a matter of injustice and inequality, and the president should show leadership and make a public statement about this matter.”

Facebook Twitter Pinterest Women in San Salvador demonstrate in support of Evelyn Beatríz Hernández Cruz. Photograph: AFP Contributor/AFP/Getty Images

The chances of legal reform are, however, slim, given that rightwing anti-choice party Arena and its allies hold a majority in the legislature.

El Salvador court frees woman on trial after bearing rapist's baby Read more

Campaigners nonetheless hope Bukele will create a committee to review the legality of all cases involving women jailed for abortion-related offences – as recommended by the UN human rights high commissioner in 2017.

In the past decade, 41 women have been freed as a result of dogged campaigning by domestic and international human rights groups, including six – Teodora del Carmen Vásquez, Mayra Figueroa, Elsy Rivera, Katherine Mazariego, Maria Lopez and Imelda Cortez – in 2018.

A further 16 women known to activists are serving up to 35 years in jail; at least five others, including Hernández, are being prosecuted.

At an earlier court appearance, Hernández, who pleaded not guilty for the second time, said: “I trust God that I will be fine. I know that good things are coming for me, I am innocent.”