EL SALVADOR (Aug. 19, 2019) - Evelyn Hernandez was acquitted of aggravated homicide in a retrial based on an obstetric emergency she suffered while giving birth. The American Bar Association’s Center for Human Rights has been monitoring the proceedings against Ms. Hernandez as part of the Clooney Foundation for Justice’s TrialWatch initiative. Despite the acquittal, the Center is deeply concerned by the lack of evidence presented by the prosecution and by the fact that Ms. Hernandez – having already spent almost three years in prison – was forced to undergo yet another harrowing trial. The investigative practices employed by the Salvadoran authorities are likewise a source of concern.
Evelyn Beatríz Hernández Cruz is a 21-year-old female from a poor rural community in El Salvador, which imposes a ban on abortions in all circumstances. In April 2016, Ms. Hernandez – then 18 – experienced severe abdominal pain and diarrhea. She sought relief in her home’s outdoor latrine and ultimately delivered a child. Ms. Hernandez has stated that she was not aware she was pregnant, instead mistaking the symptoms for stomach troubles. Her mother found her unconscious and covered in blood, after which Ms. Hernandez was transported to the hospital for emergency medical services. Doctors at the hospital called the police. Ms. Hernandez was reportedly handcuffed to her hospital bed and – just several days later – transferred to a prison to await trial. In July 2017, on the theory that Ms. Hernandez had purposefully induced an abortion and left the baby for dead, a court in San Salvador sentenced her to 30 years in prison. In 2018, the Supreme Court of El Salvador annulled Ms. Hernandez’s conviction based on insufficient evidence and remanded the case to the trial court, which ordered a retrial before a different judge. In the new proceedings, Ms. Hernandez faced up to 40 years in prison.
The prosecution’s theory of the case was that Ms. Hernandez was liable for aggravated homicide by omission: in other words, that Ms. Hernandez had failed to fulfil the duty of care that she owed her child. In this regard, the prosecution argued that Ms. Hernandez had knowingly neglected to seek appropriate prenatal services during her pregnancy. Not a single prosecution witness, however, testified that Ms. Hernandez had demonstrated awareness of her pregnancy. In fact, the primary prosecution witness on this subject, health worker Marjorie Lizeth Gonzalez de Mauricio, could only confirm that there were rumors Ms. Hernandez was pregnant. She further stated that Ms. Hernandez and members of Ms. Hernandez’s family had explicitly told her that Ms. Hernandez was not pregnant. Meanwhile, in closing arguments, the prosecutor asserted that “It was not proven that Evelyn did not know she was pregnant,” seemingly shifting the burden of proof to the defense. As such, the state failed to establish that Ms. Hernandez purposefully omitted to seek treatment during her pregnancy.
The prosecution also argued that Ms. Hernandez did not provide her child with appropriate care upon birth. The evidence in this regard, however, was similarly inadequate. Firstly, the testimony of medical experts left doubt as to whether the child was born alive. Experts who concluded the child was born alive noted that he had likely died from aspiration of fecal matter and/or amniotic fluid. This emergency could have led to near-immediate death, meaning that Ms. Hernandez would have been unable to assist in any event.
Crucially, various witnesses testified that the birth had induced severe bleeding and loss of consciousness. Therefore, even if the child had been born alive, the evidence suggests that Ms. Hernandez – in hemorrhagic and hypovolemic shock – was not capable of intervening. This was the same evidence presented at the first trial, which the Supreme Court had deemed too weak to sustain Ms. Hernandez’s conviction. While Ms. Hernandez was justifiably acquitted, it is troubling that she was subjected to a second prosecution despite the severe dearth of evidence.
Additionally, the tactics utilized by the state investigators raise concerns. As noted above, doctors informed the police upon Ms. Hernandez’s arrival at the hospital. Notwithstanding the lack of indication that Ms. Hernandez had suffered anything but an obstetric emergency, she was handcuffed to her bed, subjected to an DNA test, and soon thereafter transferred to prison. The imposition of such measures on an individual seeking medical services in the wake of a traumatic and physically debilitating incident is questionable.
Ms. Hernandez is one of many Salvadoran women who have been tried for aggravated homicide due to obstetric complications. Notably, the country’s stringent legislation has disproportionately affected the poor: marginalized women like Ms. Hernandez who seek emergency medical services in public hospitals after experiencing pregnancy complications. The Center’s full TrialWatch Fairness Report on the proceedings against Ms. Hernandez is forthcoming.