El Salvador rape victim suspected of having abortion acquitted at retrial

Evelyn Hernandez, center, is accompanied by her lawyers Aug. 19 in San Salvador after being acquitted of homicide in a case that drew attention to El Salvador's strict abortion laws.
(Oscar Rivera / AFP/Getty Images)

A rape victim who was suspected of having an abortion and charged with homicide was acquitted by a judge at a retrial Monday in a case that attracted international attention to El Salvador’s strict abortion laws.

Evelyn Beatriz Hernandez, now 21, had served 33 months of a 30-year prison sentence when her conviction was overturned in February for lack of evidence and a new trial was ordered. Prosecutors had asked for a 40-year sentence.

The retrial was a first for such a case in the Central American nation, where prosecutors aggressively pursue legal cases against women who have miscarriages or other obstetric emergencies, accusing them of murder.


“Thank God, justice was done,” Hernandez said following the announcement of the verdict, visibly emotional as dozens of female supporters waited at the courthouse. “I also thank you who have been present here.”

Hernandez also thanked foreign diplomats who have followed the case closely. The Associated Press usually does not name victims of alleged sexual assault, but Hernandez has spoken publicly about her case.

Hernandez’s fetus was at 32 weeks in 2016 when she felt intense abdominal pains and delivered it into an outdoor toilet, and it was later found lifeless in a septic tank. Her mother said she found her passed out next to the latrine, and Hernandez said she didn’t know she was pregnant.

Both women said they didn’t know there was a fetus in the tank, but prosecutors didn’t believe them and pressed charges. Forensic experts were unable to determine whether it died in the uterus or in the septic tank.

At the retrial, prosecutors’ argument against Hernandez was commission by omission — that is, she failed to protect her fetus.

“We believe the judge has been very fair in his ruling,” defense lawyer Bertha Maria Deleon said. “He has said that there was no way to prove a crime and for that reason he absolved her.”


El Salvador is one of three Central American nations with total bans on abortion. Women convicted of having abortions face sentences of two to eight years.

But women who turn up at public hospitals following a miscarriage are sometimes accused of having killed the fetus and charged with aggravated homicide, which carries a sentence of 30 to 40 years. Such punishments often fall on poor, young women and victims of rape.

“This is a resounding victory for the rights of women in El Salvador. It reaffirms that no woman should be wrongly accused of homicide for the simple fact of suffering an obstetric emergency,” said Erika Guevara-Rosas, Americas director at Amnesty International.

Guevara-Rosas called on El Salvador to cease “criminalizing women once and for all by immediately revoking the nation’s draconian antiabortion laws.”

Every year an estimated 25,000 women are impregnated after rapes in the country of just over 6 million. It is believed that thousands of clandestine abortions are carried out each year in El Salvador.

Hernandez’s case was seen as a test for reproductive rights under new President Nayib Bukele, who has said he believes abortion is acceptable only when the pregnant person’s life is at risk but that he opposes criminalizing those who have miscarriages.