Abortion in the Law and in the Courts ************************ 25 May 2016
RWANDA
Unknown rape victim, Rwanda 13-year-old girl* who was raped is allowed abortion on appeal
A 13-year-old girl's request for access to legal abortion following rape, in a case filed by her mother, was denied by the first court who heard the request. The abortion was later allowed on appeal in a judgement handed down on 30 October 2015. This is what happened according to the official English translation of the proceedings, redacted to preserve her privacy:
The judge in the first court hearing refused the abortion for the following reasons:
The man accused of raping her had not yet been charged or convicted of the crime.
The prosecutor claimed that there were other ways that she could have become pregnant, that is, not by being raped.
Rwandan law permitting abortion following rape says that an exception to illegality can be made if a 'woman' has been raped, but this was a 13-year-old girl, not a woman.
The law punishes defilement of children under the age of 18, but defilement is not the same as rape; therefore, the law allowing abortion following rape does not cover defilement of a child.
The appeal court responded that:
The girl was definitely defiled. She was too young to decide whether to have intercourse, so this is the same as being raped as it was done without her consent.
The court ought not to wait until the man is tried or found guilty.
It was not shown that she had not become pregnant due to rape.
It is the right of a mother to request an abortion on behalf of her daughter as the daughter is under the age of 18.
When abortion is provided by a medical doctor for a woman who has been raped, both of them are exempt from criminal liability.
Article 14(2)C of the Protocol to African Charter on Human and People's rights on the rights of Women in Africa, in which Rwanda is signatory and authorized its use in Rwanda concerning the observation of Article 14.2.c …provides that "member States shall take all appropriate measures to protect the reproductive rights of women by authorizing medical abortion in case of sexual assaults, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus".
"The Court finds that the mother has the right to request a medical abortion [meaning a safe abortion here] for her daughter as it is clear that she was defiled at the age of 13, and any child defilement regardless of the form and any means used is qualified as defilement as the sexual intercourse is done against the child’s consent."
The girl was no longer going to school as she felt ashamed in front of her classmates. That she needs to continue her lessons is reasonable.
Abortion can only be carried out up to 22 weeks of pregnancy. She is not yet that far into the pregnancy.
Decision of the court: As it is the wish of the girl and her lawyers, the court finds that the appeal is well-founded, the previous judgment should be altered in all its aspects, the girl is granted the abortion, the hospital should be informed immediately, and it should be carried out before she reaches 22 weeks of pregnancy.
A rape victim testifies in Rwanda The “life without life” of Rwandan children born of rape in genocide
"In Rwanda, children born of women who were raped during the 1994 genocide are often rejected by the community and receive no specific aid. Their mothers, who are also stigmatized, are often their only support in what one of them calls “a life without life”.
"Twenty-two years ago Maria was raped, damaged in her body and soul. Four months ago Fiston, the child born of her rape, hardly noticed his 21st birthday. What could have been a joyous occasion for the young man and his mother served rather to bring back the worst memories for Maria, now 40. “A part of me died with what happened to me,” she says. “And even hearing my son’s name reopens my wound.” Fiston is rejected by her entourage.
"How many children are there like Fiston, born of their mother’s rape during the genocide? Although it is hard to give statistics, it is certain that they are many. Rejected by their mother’s family, their fate worsens with age when they learn of their origins. The deprivation they suffer is then made worse for many by existential angst. Their mothers often wish they had not survived.
“Some women were lucky enough to be killed after being raped and others had the courage to get an abortion,” says Maria. “But I was not killed and I hated the idea of an abortion... For us, these children are an indelible mark of rape, and until the end of my days I will bear this mark on my forehead.”
Tags: Rwanda, mass rape, children born of mass rape
UGANDA
Court decisions regarding three maternal death cases brought by CEHURD: an appeal in two cases and a new case in 2015
This was an appeal of a ruling from the Constitutional Court rendered in Constitutional Petition No.16 of 2011, in which the appellants, the families of two pregnant women who had died in childbirth and the Center for Health, Human Rights and Development (CEHURD), had challenged the Government of Uganda for failing to provide basic maternal health services in relation to the deaths of two women. The appellants claimed that the failure to provide basic maternal health care infringed constitutionally guaranteed rights under Articles 22, 24, 33, 34 and 44, as well as the right of access to health services under Objectives XIV(b), XV, XX, and Article 8A of the Constitution of the Republic of Uganda 1995.
The Attorney General argued on preliminary objection that issues relating to health rights were “political questions” – a matter that the Judiciary had no authority to address. The Constitutional Court agreed with the State’s objection and dismissed the application in 2012 without hearing its merits, on the ground that the petition did not disclose competent questions that needed interpretation, and that the petition concerned a political question that it could not adjudicate upon. The Court also argued that it had no mandate to hear a case regarding the alleged violation of health rights and the rights of women.
The appellants therefore filed the appeal on three grounds. The first was that the Constitutional Court did not correctly apply the doctrine of political question. Second, the Constitutional Court erred in law in holding that the petition did not raise competent questions requiring constitutional interpretation. Third, the Constitutional Court erred in law when it decided that the petition called it to review and implement health policies. They cited, among other judgements, Uganda Association of Women Lawyers & Five others v. Attorney General, (Constitutional Petition No. 2 of 2003), to advance the position that the Constitutional Court should always remain accessible to any person seeking interpretation of the Constitution.
The Supreme Court ruled in favour of the appellants in November 2015 and struck down the Constitutional Court’s judgment, which means the original case can now be heard on its merits.
“With great respect to the Constitutional Court, I think they misunderstood what was required of the court. I do not think the court was required to determine, formulate or implement the health policies of government. In my view, the court is required to determine whether the government has provided or taken all practical measures to ensure the basic medical services to the population. In this case it is maternal services in issue.” Bart M Katureebe, Chief Justice
A separate case was brought by CEHURD and the family of a pregnant woman who died of a ruptured uterus and blood loss while in labour. This case was heard in a Ugandan High Court in 2015. The Court found neglect of duty and human rights violations on the part of the doctor and the hospital.
[Note: We report these cases for this reason: Given that maternal deaths following unsafe abortion are rife in Uganda, case law may be applicable when a woman dies from complications of unsafe abortion, which is also a maternal death, without having been able to receive life-saving treatment. This would of course have to be tested with actual cases in court.]
Tags: Uganda, maternal deaths, neglect of duty of care, human rights violations, court case
EL SALVADOR
María Teresa Rivera, one of Las 17, is freed on appeal
In November 2011, María Teresa Rivera, one of Las 17, unexpectedly went into labour, giving birth in the latrine of her home. The birth was dangerous and unattended by a medical professional. The fetus died. As with other women in El Salvador, where abortion is completely illegal and miscarriage and stillbirth are sometimes treated as homicide, Rivera’s medical crisis led to her being charged with and convicted of aggravated homicide, and she was sentenced in 2012 to 40 years in prison.
Her case was scheduled for appeal on 20 May. Advocates say that her case could influence public sentiment about other similar cases around the country. With the support of the Salvadoran feminist organizationAgrupación Ciudadana por la Despenalización del Aborto, Rivera has been fighting for her freedom for several years. In 2014, along with the rest of Las 17, she requested a pardon from the Salvadoran government, but her request was denied.
On 20 May, the Third Court, at the conclusion of a hearing of "extraordinary review of judgment" recognized that, not having sufficient evidence to prove the commission of a crime by María Teresa Rivera, the court's conviction of her in 2012 was a judicial error. The previous judgment was therefore annulled and she was immediately granted her freedom.
*** Ten months ago, Flor Arely González went from hospital to jail after an obstetric complication
The word "freedom" will have an even greater meaning for Flor Arely González after 11 May, the day on which a judge of the Trial Court of Sonsonate acquitted her of the offence of aggravated homicide, an offence she was charged with after she had had an obstetric emergency in mid-2015.
Morena Herrera, member of the Colectivo Feminista, who represented her in the hearing, rejected the charge of aggravated homicide. In response, at the last minute, the Office of the Attorney General tried to change the charge to "criminal abortion". However, this was also dismissed by the judge.
Flor is the mother of five children aged 20, 17, 15, 8 and 7 years old. According to the history of what happened to her, as reported by the Feminist Collective, after being ill for three days Flor decided to go to bathe in the river near her home, thinking it would make her feel better. However, far from improving how she felt, she suffered a premature delivery and fell to the ground unconscious.
The doctors who treated her claimed she had had an abortion and denounced her to the police, who took her straight from the hospital to the jail. She was detained in a holding cell of the Policía Nacional Civil de Sonsonate for nine months. Then, for a further month, she was released on parole, the first woman accused of homicide who received different treatment.
That Flor has been acquitted represents, for Morena Herrera, a feminist and human rights defender, an act of justice. She said: "No one in Flor's situation should be detained. It is encouraging that a court has recognised that the criminalisation of obstetric emergencies should not happen," she said.
Flor is the 11th woman be released after having been accused of aggravated homicide, due to the efforts of the Feminist Collective. All the cases have had a common denominator: all were accused by personnel in public hospitals when they came to seek medical care for emergency obstetric complications.
In El Salvador, since 1998, all abortions are illegal. A report of the Agrupación Ciudadana por la Despenalización del Aborto presented evidence that between 2000 and 2011, following emergency obstetric care, 129 women were charged and 49 were imprisoned. These women were typically young, poor and with very little education.
The Agrupación continues its campaign for the release of the remaining Las 17 and for freedom for 27 other women who have had similar experiences as Flor.
*** Symbolic tribunal "Justice and Reparation for the Women
Con el objetivo de contribuir a la libertad y acceso a la justicia de las mujeres salvadoreñas condenadas injustamente por la legislación penal del aborto en El Salvador, el tribunal simbólico “Justicia y Reparación para las Mujeres” dio a conocer la resolución emitida por el mismo tribunal en los casos de tres mujeres que fueron condenadas por homicidio agravado y a cumplir penas de hasta 40 años de cárcel. El tribunal simbólico está conformado por CEMUJER, el Ilustrísimo Colegio de Abogacía de Barcelona (ICAB) y por la ex magistrada de la Corte Suprema de Justicia, Mirna Perla.
(With the objective of contributing to the freedom and access to justice of Salvadoran women unjustly convicted under the criminal law on abortion in El Salvador, the symbolic tribunal "Justice and Reparation for Women" passed a resolution calling for the three women who were convicted of aggravated homicide and sentenced to up to 40 years in prison to be freed. The symbolic tribunal was composed of CEMUJER, the illustrious College of Lawyers of Barcelona (ICAB) and the former judge of the Supreme Court of Justice, Mirna Pearl.)
Tags: El Salvador, court cases, trials and imprisonment, human rights violations, symbolic tribunal
ARGENTINA
Juan Méndez and Soledad Deva at the public hearing A sentence with international repercussions
Only a few days after the Tucumán criminal court refused to release Belén, aged 27 years, who suffered a miscarriage but was sentenced to eight years in prison, having already been detained awaiting trial for two years and two months, her case was taken up in a public hearing convened by the Commission on Human Rights and Guarantees of the Chamber of Deputies of Argentina, chaired by Congresswoman Victoria Donda. The hearing was entitled: "The role of the State in relation to violence against women: torture and other ill-treatment in the field of sexual and reproductive health".
The UN Special Rapporteur against Torture, Juan Méndez, requested information on Belén's case, to assess whether her human rights had been violated and if so, to make a complaint – or in the jargon what is called a communication to the Argentine State, to explain its actions. He told Página/12: "Some women are subjected to cruel and inhuman treatment, and discriminatory and patriarchal attitudes, when they seek to access to health care and they have rights covered in the law," at the end of his presentation to the public hearing.
Her imprisonment continues to generate public statements against the sentence, and has also became the subject of a campaign by Amnesty International that has already gathered around 24,000 signatures from different countries, among them France, Taiwan, United States, Belgium, Poland and Norway, demanding that she is released.
Méndez referred to his recent report, which provides a gender perspective on the torture and other cruel, inhuman and degrading treatment or punishment, with a focus on sexual and reproductive rights in health care environments."Women and girls are victims of multiple forms of violence. One of these is developed in the field of sexual and reproductive rights, through laws, policies and practices by the State aimed at controlling their lives and their bodies," said Mendez. "When the State perpetuates stereotypes and gender discriminatory prejudices, it allows prohibited acts to be committed with impunity that are in breach of its duty to prevent these acts."
At the meeting also was Soledad Deza, Belén's solicitor since her case was made public, and a member of Catholics for the Right to Decide. “Belén today feels she has support, for which she is very grateful,” Deza said, referring to the support of legislators, human rights and women's organisations. The room where the hearing took place was decorated with green handkerchiefs, symbol of the National Campaign for the Right to Abortion (Campaña Nacional por el Derecho al Aborto), who are calling for the decriminalisation of abortion and who also participated in the hearing.
Tags: Argentina, trials and imprisonment, court case, human rights violations
USA
Packed courtroom 23 May 2016 @NAPW The appeal of Purvi Patel against 20 years in prison in Indiana
by National Advocates for Pregnant Women
"In the last few months there has been a major outcry in response to the suggestion that women themselves might be arrested for having abortions. Since its inception, National Advocates for Pregnant Women (NAPW) has been the organization challenging the arrests of pregnant women and the leading organization defending women who have been punished for having abortions, experiencing pregnancy losses and for giving birth.
"On Monday, May 23, 2016 Ms Purvi Patel will fight her conviction and 20-year sentence in the Indiana Court of Appeals. In July 2013, Purvi Patel, a 33-year-old Indian-American woman, went to a hospital emergency room bleeding and seeking help. She explained that she had been pregnant and had disposed of the fetal remains in a trash bin. With assistance from some of her own physicians, police arrested Ms Patel, who was eventually charged with and convicted of feticide and neglect of a dependent and sentenced to serve 20 years in prison. She has already been locked up for more than a year in the Indiana Women's Prison.
"Although Indiana has no law permitting punishment for having or attempting to have an abortion, prosecutors misused the state's feticide law – passed to protect pregnant women from violence to -- instead, re-criminalize abortion and send Ms. Patel to prison. And because the prosecution did not have any actual evidence that Ms. Patel had a live birth and neglected a newborn, the prosecution focused on her actions and omissions during pregnancy, including her abortion – to win a conviction on the charge of neglect of a dependent.
"NAPW has advocated on behalf of Ms. Patel from the beginning because we believe that there is no point in pregnancy when a woman should lose her civil and human rights. We know that bringing criminal charges against people for ending a pregnancy, experiencing a miscarriage or stillbirth, or for being pregnant and giving birth, puts all pregnant people at risk. NAPW knows that punishing women who have sought healthcare, will deter health care, endangering maternal, fetal and child health. And we know that empowering the state to punish pregnant women means that low-income women and women of color will be especially targeted for arrest and incarceration."
The Indiana Court of Appeal's summary of the case is as follows:
"Purvi Patel purchased misoprostol and mifepristone from a Hong Kong pharmacy online and used those drugs to terminate her pregnancy at home. She delivered a live baby of approximately 25 weeks' gestation who died shortly after birth. She did not seek medical care until after the baby died. Patel was charged with and convicted of neglect of a dependent as a Class A felony and feticide, a Class B felony. On appeal, Patel argues that her neglect of a dependent conviction should be reversed because it is not supported by sufficient evidence. She also argues that her feticide conviction should be reversed because the feticide statute is either inapplicable or unconstitutional in this situation."
NAPW's legal arguments in support of the appeal
NAPW filed an amicus curiae (friend of the court) brief on behalf of more than 85 organizations and individuals. Their main arguments for Ms Patel in the case are as follows:
"With regard to the neglect charge, there are powerful reasons to challenge the conclusion that there was a live birth. But even without such a challenge, the evidence – viewed in the light most favorable to the prosecution – failed to prove three essential elements of the offense: (1) that Purvi ever knew there was a live birth; (2) that there was anything Purvi possibly could have done – or known to do to save the baby within the less than a minute that it could have lived; and (3) that any omission resulted in the death of the baby. Any one of these deficiencies of proof compels reversal.
"Moreover, multiple errors in interpreting the Feticide Statute require reversal. To begin with, the Feticide Statute has no role in criminalizing unlawful abortions, which are dealt with through a separate statute. And even if the Feticide Statute does deal with abortions, it certainly does not expose a woman to prosecution for her own abortion. Additionally, were the Court to interpret the Feticide Statute as the prosecution seeks, that statute would violate both the United States and Indiana Constitutions by placing an "undue burden" on a woman's right to choose an abortion. Finally, the Feticide conviction depended on the plainly wrong position that one can be guilty of Feticide (i.e. the killing of a fetus) even if no fetus is ever killed (as the State adamantly maintains was true here)."
The main points of the argument were these:
The evidence was insufficient to prove the necessary elements of neglect of a dependent resulting in death.
The evidence was insufficient to show Purvi had actual knowledge of a live birth.
The evidence failed to show actual endangerment or that the defendant was consciously aware there were things she could do to enhance the chances of the infant's survival.
The evidence does not support any finding that any neglect resulted in the death of the dependent.
Two of the judges' questions during the hearing:
- How can they show that she endangered the child if they can’t even know the baby was alive?
- Doesn’t it cause absurd results to exempt women from prosecution under abortion law but charge them under feticide?#FreePurvi@NAPW
