Where Rape Defines the Victim

Image captured by Nadia Shira Cohen via The Guardian ‘The Perils of Pregnancy in a Country Where Abortion is a Crime’

Radical feminists have for years commented on the ways in which legal systems around the world come to prosecute both rapists and rape victims in ways which reinforce the power of the rapist and the act of rape over the victim. Notably, Catherine Mackinnon (1989) in her analysis of Pleasure Under Patriarchy outlines how definitions of both rape and sex, legal deterrents, and the law construct a social violence that maintains oppression and violence against women whist simultaneously confining and dictating notions of female sexuality. These ‘radical’ ideas remain hidden in current debates around law reform and practice; as outlined in the case of Evelyn Beatriz Hernandez Cruz in El Salvador.

This case has received global attention from NGO’s, human rights organisations and the press. It stands as a clear example of the way the law can be an instrument of violence against women.

Evelyn Beatriz Hernandez Cruz, a 19 year old woman from rural El Salvador, had been repeatedly raped by gang members spanning several months.

Evelyn began to experience illness and discomfort and eventually gave birth to a child in a bathroom stall. The baby was stillborn and Evelyn claims that she did not know she was pregnant until the stillbirth. The baby was found in the bathroom and Evelyn was arrested and hospitalised for her illness.

In court, a female judge found Evelyn guilty of murder for failing to seek antenatal care. Evelyn has been sentenced to 30 years. Activists and humans rights organisations are currently campaigning for Evelyn’s release. An appeal case has been opened.

In El Salvador, it is illegal to receive abortions under any circumstance. The government has expressed a concern about self-induced abortions, and has taken measures to reduce these risks through promoting access to contraception.

Before 1997, women could receive abortions in certain circumstances, including following rape. Abortions caused by the negligence could not be punished.

The conviction of Evelyn, and the attitudes towards abortion in El Salvador reflect the tight control of the female body by a patriarchal state.

Evelyn’s inability to receive help or protection from her rapists is the first indicator of this oppression. It is painful to hear that in El Salvador, the perpetrators of rape can be given a maximum sentence of 20 years, but that a sentence this high only applies to certain classes of victim — such as children or persons with disabilities. For a stillbirth, Evelyn received more time than her rapists would ever receive for their violations against her body.

Despite Evelyn’s testimony, the court held that Evelyn had known about her pregnancy, and had thrown the baby into the toilet with the intention to kill it. Examinations of the child after the birth were inconclusive, yet the court treated this as a sign that beyond reasonable doubt, Evelyn had murdered the baby.

If we take the perspective of the court, and assume that Evelyn had killed her child, we must heavily scrutinise the oppressive nature of El Salvador’s abortion laws and attitudes towards women. If a woman cannot make decisions about her body and receive a safe abortion, she ultimately has no control over her future, her past or the crimes enacted against her.

Research has found that many cases of rape in El Salvador remain unreported due to societal pressures and ineffective or unsupportive responses from authorities. For a majority of the population surveyed, sexual violence or rape was held to be ‘socially acceptable’, whereas abortion is seen as highly immoral. In addition, if a woman becomes pregnant through rape she has no choice but to accept the consequences of that rape for the rest of her life. From that moment on, the rape defines the victim.

Evelyn’s case is not unique. Hundreds of women find themselves imprisoned for up to 50 years following a miscarriage or still birth in El Salvador. María Teresa Rivera was convicted for 40 years following her miscarriage in 2011. Although released after four years, there are appeals to send her back to prison.

Fortunately, there do seem to be signs that legislators in El Salvador are under increasing pressure to legalise abortions under certain circumstances. Although the move would not offer full freedom for women in regards to their right to control their bodies, it would at least offer victims such as Evelyn and María justice.

Oppressive abortion laws are causing harm to millions of women around the world. Their liberty and rights restrained by legislators, and the risk of of incarceration looms if they choose to make a decision that concerns nobody but themselves. These laws are efforts by patriarchal institutions to limit the freedom and agency of women — they excuse sexual violence and rape, often carried out by men, and persecute the victims of this harm.

Find out more: 

Centre for Reproductive Rights, The Total Criminalisation of Abortion in El Salvador

The Guardian

The Guardian (2)

The UN – Abortion Law in El Salvador 



Agrupación Ciudadana

Collectiva Feminista

Facebook – Justicia para Evelyn




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