The Fight for "Las 17"
By: Monica Macias
Carmen Guadalupe Vasquez Aldana was just 18 when she was sentenced to 30 years in jail. Her crime: a miscarriage. Carmen became pregnant after being raped. After her miscarriage, she was taken to the hospital and her doctors accused her of having intentionally terminated her pregnancy. She was convicted of aggravated homicide, and sent to prison. Carmen wasn’t released until a decade later.
The World’s Most Draconian Abortion Laws
In El Salvador, abortion is a strict liability crime with no exceptions.[1] This is true even in cases where the mother has been raped or her life is in danger. No woman is allowed to have an abortion despite the possibility that their pregnancy will kill them, or if their fetuses are not viable. In 1998, abortion was outlawed in El Salvador. The crime carries a prison sentence of up to eight years, but when it is treated as homicide, women are sentenced up to four decades in jail.
Despite the restrictive legislation, it has been estimated that 246, 275 abortions took place between 1995 and 2000, and 11.1% of them resulted in the death of woman.[2] This absolute ban on abortion puts women and girls at risk, because a majority of them, resort to illegal abortions.
Carmen’s case is not the only one of its kind. The Agrupacion Ciudadana por la Despenalizacion del Aborto, an advocacy group in El Salvador, reported that between 2000 and 2011, 129 women have been prosecuted for abortion related crimes in El Salvador. Of these 129, 23 were convicted of homicide.[3]
The tough on crime law enforcement approach has even spilled over to instances where an abortion is inferred cases where a miscarriage occurred. Carmen is one of 17 women, known as “Las 17.”[4] These women were sentenced after miscarriages on charges of aggravated homicide because their fetuses were viable. Of these 17 cases of women imprisoned for miscarriage, only two have been released. Most of the remaining women are serving sentences up to 40 years.[5]
A second woman, Maria Teresa Rivera woke up in the hospital after being found bleeding and unconscious in her bathroom. She miscarried and when she went to the hospital, the staff reported her, and police arrested her. The court convicted her of aggravated homicide and she was sentenced to 40 years.
International Framework
In its recommendations, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) stated that the government of El Salvador needs to decriminalize abortion in cases of rape, fatal fetal impairments and when the pregnancy places the health of life of a woman at risk.[6] The CEDAW also called on El Salvador to review the case of “Las 17” with the aim of ensuring their release. Additionally, the CEDAW called on El Salvador to reform its Criminal Procedure Code and end the practice of health professionals reporting women to the police based on the suspicion of abortion.
Further, in 2011, the U.N. Special Rapporteur on Violence against Women, Rashida Manjoo, presented a report on her follow-up mission to El Salvador. In her report, she stated:
Deeply rooted patriarchal attitudes and the pervasiveness of a machista culture that reinforces stereotypes about the roles and responsibilities of women and men in the family, the workplace and society constitute serious obstacles to women’s rights, in particular their right to be free from all forms of violence. The disadvantaged situation of women is patent at all levels of society, from education and employment to political participation, contributing to the decline of their economic status and to greater vulnerability to violence and exploitation. Particularly worrying is the growing feminization of rural poverty as a result of a major crisis in the agricultural sector and the increase in poor rural households headed by women.[7]
The U.N. Human Rights Committee (HRC) interprets maternal mortality and other issues related to women’s sexual and reproductive rights, including unsafe abortions to be issues that form part of the right to life of persons.[8] It has also stated that “… to guarantee the right to life, the State party should strengthen its efforts in that regard, in particular in ensuring the accessibility of health services, including emergency obstetric care.”[9] Thus, the CEDAW Committee has established that total abortion bans, because of their consequences for women’s lives, constitute a violation of the rights to health and life.[10]
A Push for Change
In late 2016, Lorena Pena of the Farabundo Martin National Liberation Front (FMLN), introduced a bill to the Legislative Assembly.[11] The proposed bill would allow abortion in cases of rape, risk to a woman’s life, fetal deformities and rape of a minor or statutory rape. However, to pass, 43 out of 84 votes are needed in congress but FMLN only has 31 so far.
[1] Penal Code of El Salvador, art. 312 (1998), available at http:// www.asamblea.gob.sv/eparlamento/indice-legislativo/buscadorde-documentos-legislativos/codigo-penal; Political Constitution of El Salvador, art. 1 (1998), available at http://www.asamblea.gob.sv/asamblea-legislativa/constitucion/ Constitucion_Actualizada_Republica_El_Salvador.pdf
[2] Guttmacher Institute, Facts on Induced Abortion Worldwide https://www.guttmacher.org/fact-sheet/induced-abortion-worldwide
[4] Id.
[5] http://www.telesurtv.net/english/news/El-Salvador-Mulls-Ending-Miscarriage-of-Justice-with-New-Abortion-Law-20170308-0012.html
[6] https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/CEDAW_C_SLV_CO_8-9_26044_E.pdf
[7] Special Rapporteur on violence against women, its causes and consequences, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Rashida Manjoo - Addendum - Follow-up mission to El Salvador, para. 66, UN Doc. A/HRC/17/26/Add.2 (Feb. 14, 2011) [hereinafter Rashida Manjoo, Follow-up mission to El Salvador]; Committee on the Elimination of Discrimination against Women (CEDAW), Concluding Observations: El Salvador, paras. 35-36, UN Doc. CEDAW/C/SLV/CO/7 (2008); Committee on the Rights of the Child, (CRC), Concluding Observations: El Salvador, paras. 60, 61(d), UN Doc. CRC/C/SLV/CO/3-4 (2010); HRC, Concluding Observations: El Salvador, para. 14, UN Doc. CCPR/CO/78/SLV (2003); El Salvador, para. 10, UN Doc. ONUCCPR/C/SLV/CO/6 (2010).
[8] The HRC has indicated that states must report on rates of maternal mortality, unwanted pregnancies, and unsafe abortion as a sign of compliance with their obligations regarding the right to life. HRC, General Comment No. 28: Equality of rights between men and women (article 3), (68th Session, 2000), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, p. 229, para. 10, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008).
[9] Id.
[10] Id.
[11] http://www.elsalvadortimes.com/articulo/politicos/lorena-penha-pide-despenalizar-aborto/20161011152514009501.html