by Kathy Bougher
May 6, 2015 – 10:37 am, RH Reality Check
Carmelina Pérez, a Honduran woman living in El Salvador, was convicted of aggravated homicide and sentenced to 30 years in prison in July 2014 after suffering what appeared to be a miscarriage in the home where she was employed as a domestic worker. Pérez is not one of “Las 17,” the group of women imprisoned on abortion-related charges and for whom the La Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) requested pardons from the Salvadoran government, because her case had not yet gone to trial at the time of their requests. Her story mirrors theirs, however: She, too, had her obstetrical emergency criminalized.
But last week, she was acquitted of all charges after 16 months in prison, setting a possible new precedent in the fight for reproductive justice in El Salvador.
In addition to creating a joyous victory for Pérez, now 21 years old, her trial provides an opportunity to expose and analyze in detail the medical and legal injustices that women frequently face in El Salvador.
Pérez had left her isolated community in Honduras to find employment as a live-in domestic worker with a family in rural eastern El Salvador. When she became pregnant, she was afraid to tell her employers for fear of losing the job, her only means of supporting the toddler son and elderly parents she’d left in Honduras. According to Pérez, she went into labor and gave birth alone on January 1, 2014, to a fetus that did not survive.
She hemorrhaged heavily, and eventually her employer took her to the local public hospital, without realizing that she had just given birth. Under questioning from the physician who treated her, Pérez acknowledged that she’d had a miscarriage. That physician accused her of abortion and notified police, who took her into custody. On July 3, 2014, she was convicted of aggravated homicide and sentenced to 30 years in prison.
In an on-the-ground interview with RH Reality Check after the trial, Agrupación attorney Dennis Muñoz, who represented Pérez along with Daniela Ramos, described that first trial as riddled with “prosecutorial flaws” and heavily “influenced by prejudices” against women. On July 30, Muñoz and Ramos filed an appeal.
Salvadoran law mandates doctor-patient confidentiality, but it also requires doctors to report suspected abortions or other crimes. However, another clause addresses that contradiction when it says that the duty to report crimes does not apply if the information is gained through a confidential relationship.
In what the attorneys called a “precedent-setting” decision, the appeals court ruled on September 22, 2014 that the physician who treated Pérez in the public hospital where she sought emergency treatment had violated doctor-patient confidentiality by testifying against Pérez in court and revealing information gained only through that protected relationship. Even though Muñoz had objected to the doctor’s testimony during the first trial, citing the violation of professional confidentiality, that judge had allowed the doctor to testify.
Significantly, the appeals court ruling stated that the confidentiality violation was automatic grounds for annulment of the trial and the conviction. It also called for a new trial to take place, where the fight over doctor-patient confidentiality continued to play out. To the surprise of the defense attorneys, the same prosecutor attempted to have the same physician testify again—a clear violation of the appeals court’s order.
In a Skype interview with RH Reality Check after the second trial, Muñoz said that when he objected to the doctor’s testimony and referred to the appeals court decision, the prosecutor insisted that she needed the testimony from the physician to make her case.
Attorney Jose Santos Guardado, who joined Muñoz and Ramos at the second trial, noted during the Skype interview that when the judge asked the physician to explain her understanding of doctor-patient confidentiality, she replied that it was her duty to testify because she was an employee in a public hospital, and thus it was her responsibility to help the government detect and pursue crimes. Therefore, the physician felt that doctor-patient confidentiality did not apply in the public hospital. This understanding, however, is not consistent with the law.
According to the three attorneys, the judge explained to the physician that she would be violating the law if she testified. He ordered her to leave the courtroom. Muñoz and Ramos note that the doctor and the prosecutor may have exposed themselves to potential criminal charges stemming from the doctor’s testimony at the first trial, an issue the Agrupación may explore. At the least, the lawyers hope the judge’s actions will send a strong message to other prosecutors and physicians.
Although perhaps not her intention, the doctor’s comment also illustrates a reality the Agrupación has observed widely—that poor women are often discriminated against in public hospitals. The Agrupación noted in its 2012 research findings, Del Hospital a la Cárcel (From the Hospital to the Jail), that of all the cases its members found in the country between 2000 and 2011, not a single woman had been reported to police with abortion-related charges by medical personnel in a private clinic or hospital. All the reports had come from public hospitals, the only health care available for most poor women. Although it is possible that women with obstetrical emergencies that are seen as suspected abortions don’t arrive at private hospitals, the Agrupación noted in the report, it appears more likely that the private hospitals simply don’t report their patients to the police. This results in discrimination against women who cannot afford private hospitals.
In the Las 17 cases, records demonstrate that public hospital physicians were frequently the ones who made the initial police report. They were also often asked to testify against their patients—thus calling doctor-patient confidentiality into question. However, the issue has never received judicial attention until now. Ramos and Muñoz believe the point will be important as the Agrupación continues to fight for the freedom of Las 17 and others who are still imprisoned.
Proof of a Committed Crime
The appeals court also addressed another major legal issue that Salvadoran courts have frequently ignored: The prosecution must prove the accused person took action to commit a crime, and the judge must base a conviction on this evidence, not on supposition or speculation. In a legal system that has never before been successfully challenged on its fundamentalist-influenced thinking about traditional roles of women and mothers, this was a victory.
A significant example of how this played out arose when the appeals court noted the judge’s decision to convict in the first trial was based on the argument that since Pérez was in the same room with the baby and the DNA evidence proved that she was its mother, that was sufficient reason to convict her. The first judge’s decision, ruled the appeals court, also discounted any alternative explanations for how the newborn suffered the cranial injuries that were demonstrated by the autopsy. At the first trial, the prosecutor and the judge alleged, without presenting any evidence, that Pérez had struck or thrown the live baby against a hard surface. That formed a significant part of the judge’s rationale for convicting her.
In its appeal request the Agrupación challenged this supposition and suggested the possibility that the injuries could have resulted from the birth itself: that the baby hit the floor when it left its mother’s body.
The appeals court recognized the validity of this argument, and found that the prosecution in the first trial did not fulfill its responsibility to present evidence to support its allegations, leaving doubt as to how the injuries occurred.
At the second trial, the prosecutor made the same unfounded allegation, and the Agrupación challenged it again. The difference was that the second judge made a decision based on scientific evidence rather than what the appeals court had termed “emotional inferences.” The judge agreed that cranial trauma appeared to be the baby’s cause of death. However, he ruled that the prosecution failed to provide evidence of how that cranial trauma occurred or evidence of any actions taken by Pérez to cause that trauma.
Salvadoran law says that when there are doubts in a case, the benefit of the doubt goes to the accused. Muñoz said Pérez’s trial was a “rare example” of when this right has been respected in these circumstances.
As the three attorneys acknowledged, the fact that the second judge was willing to allow lawyers to fully present their arguments (other judges have cut off testimony), listened carefully, and made decisions according to the law was what gave Pérez her victory.
About Las 17, Guardado emphasized, “If the other 17 women had had fair trials, they wouldn’t be in prison now.” Of course, part of a fair trial is a competent, adequate legal defense, which has not always been provided, the Agrupación has argued, by other women’s public defenders. By contrast, the Agrupación attorneys represented Pérez at her original trial.
Ramos agreed that if the judge or the quality of the legal defense had been different, Pérez could well be in prison now, too.
In their defense of Pérez, Guardado told RH Reality Check, “We were adamant that it is not illegal to be young, vulnerable, poor, and frightened when facing a pregnancy under precarious circumstances, nor is it illegal to hide a pregnancy or go without prenatal care. It’s a reflection on the socio-economic conditions of poor women in our country, not on their guilt.”
What Happens Now?
Pérez’s victory contributes to the momentum the Agrupación has built recently in its fight for justice. In January the government granted a pardon for one of Las 17, an historic event. Then, this spring, the Inter-American Commission on Human Rights (IACHR) agreed to hear two potentially game-changing cases—that of Beatriz, a woman denied a life-saving abortion by the Supreme Court, and Manuela, a woman serving a 30-year sentence for aggravated homicide who died of under-treated cancer while in prison. The government must provide the IACHR with explanations and remedies for those events by late June. If the IACHR rules against the Salvadoran government, it could demand “measures to prevent repetition,” which could mean significant changes in laws and in public hospital procedures.
On April 22, Amnesty International brought petitions with more than 300,000 signatures in favor of changing abortion laws to El Salvador. Amnesty and the Agrupación presented the petitions to President Salvador Sanchez-Ceren, the Supreme Court, and the leaders of the Legislative Assembly as part of the campaign to initiate a national dialogue on the question of abortion.
Of course, the politically and economically powerful Salvadoran right-wing forces who oppose the work of the Agrupación continue their campaigns, too, so the struggle is still uphill.
Pérez remains in El Salvador awaiting the final bureaucratic steps in her case, anxious to leave the country and return to her young son and her mother in Honduras. She told RH Reality Check in a telephone interview that she is “happy and grateful” to be out of prison.
Under Salvadoran law, the prosecution can also appeal Pérez’s acquittal and request yet another trial. If that happens, Ramos said, “then we just keep fighting.”
To schedule an interview with Kathy Bougher contact director of communications Rachel Perrone at firstname.lastname@example.org.