Ana has been imprisoned for eight months in the Corrientes town of Esquina. She is 30 years old and raises her two children alone, ages 13 and 6. But since November she has been imprisoned, and the children are in the care of her mother. Ana had an obstetric emergency and the child she was carrying was stillborn. This is what the fetal death certificate says, signed by the forensic doctor Ivana Karina Fernández. The autopsy could not determine the birth of the creature alive. However, since November 10, Ana has been detained, accused of doubly qualified homicide due to the link and treachery, a crime that carries the maximum sentence of life imprisonment.
This Friday, after the allegations, a court of Goya – presided over by Ricardo Diego Carbajal, seconded by the members Jorge Antonio Carbone and Julio Ángel Duarte – will dictate the sentence. The trial against Ana began on Monday, with the accusation of the prosecutor Javier Gustavo Mosquera.
Where there is a woman who needs medical attention, justice sees a dangerous criminal. “We asked for the cessation of preventive detention and they denied it to us, we requested house arrest and it was also denied us on the grounds that there could be an escape attempt,” said Ana’s lawyer, Natalia Avalos. She also said that the woman “does not have the resources to escape, she is from a very humble background and she has never even left the province.”
To support her family, as a single mother, Ana usually did cleaning jobs in other people’s houses and on weekends, together with her mother, she prepared homemade food to sell.
It is not understood why she was imprisoned at the trial. “It is part of the judicial patriarchy to use serious criminal offenses to criminalize adverse obstetric events, when a pregnancy does not have the expected happy ending,” warns the attorney for Mujeres x Mujeres, Soledad Deza. This Thursday, Deza testified as an expert witness in the trial against Ana. Deza is a university professor and a member of the advisory council of the Ministry of Women, Gender and Diversities of the Ministry of the Nation and of the advisory council of the National Program for Sexual and Reproductive Health of the Ministry of health. She was the lawyer who was able to reverse the sentence for aggravated homicide, with extraordinary mitigating circumstances, against Belén, the young woman from Tucumán who was imprisoned for almost nine hundred days, after having suffered a miscarriage at the Avellaneda Hospital, in the city of Tucumán, from where she left in handcuffs. She reported it to medical personnel.
Ana’s is not the only case in which Justice is cruel to poor women, who are seen as bad mothers. They are the tentacles of conservative anti-rights sectors inserted in the Judiciary.
“Gender stereotypes leave aside evidence that disincriminates or expertise such as an autopsy that declares the impossibility of determining a live birth. There is not only ignorance of the law, but also a judicial spirit to punish what is not part of the powers of state punitive prosecution, such as an obstetric event of these characteristics,” said Deza, in dialogue with Page 12.
She has just followed another similar case for almost three years in Tucumán where a 14-year-old girl, “Clarita”, was criminalized when in September 2019 she had an abortion in the bathroom of her house and her parents were arrested for homicide.
The story of Clarita and her family
Clarita hadn’t told anyone that she was pregnant except her boyfriend. She was very afraid, her 15th birthday was approaching, she did not want to disappoint Teresa and Hugo, her parents. One night Clarita felt a lot of pain in her stomach and went to the bathroom. She was dizzy, nauseous. At dawn, while her entire family slept, she locked herself in the bathroom and gave birth to a dead fetus that she got rid of alone and then cleaned everything, according to what the lawyer was able to reconstruct. She didn’t want anyone to notice. Two days passed and Clarita felt very bad again, but this time her parents noticed. She was pale and listless. They took her to her doctor and they did a series of tests, including an ultrasound, but they did not detect her recent obstetric event at any time.
But at night they admitted her to the Mayo Clinic. While she was under observation, two police officers sent by prosecutor Adriana Gianonni burst in to find out if there was a person with an abortion. “They had found a fetus on a piece of land in the neighborhood where Clarita lived and someone had told the Police that the family that lived in the house next door was not there at the time because they had a little daughter hospitalized at the Mayo Clinic. That’s how they found Clarita and regardless of the patient’s rights, in the institution they handed over all her clinical documentation to the uniformed men. And the fierce criminal persecution began,” Deza said.
Prosecutor Gianonni revealed sensitive information about the girl and her family in the Diario La Gaceta, from Tucumán, which reported the case as that of “the murderous grandparents” and thus fed the local morbid daily for a week. Teresa and Hugo were arrested by order of Judge Facundo Maggio in the room where they accompanied their convalescent daughter. They were held in preventive detention for 22 days, despite having been available to justice at all times and having raised the special needs of one of their children with ASD.
The teenager was finally dismissed even though she was incompetent due to her age. But neither of the two judges who intervened –the Juvenile Judge and the Investigating Judge in the case– ordered the filing of the case despite the fact that there was a fetal death certificate that ruled out the existence of a person and the possibility of a homicide.
Other elements were added to build the criminalizing story: an autopsy signed by psychiatrist Rodolfo Alfredo Lobo, from the local MPF Forensic Corps who did not have the specialty for that expertise, a preliminary report without scientific foundations that ruled “a live birth of a baby” and in the same autopsy, the certification of fetal death under the terms of art. 40 of Law 26,413. The investigation also included the “spontaneous” testimony of the doctor Marcelo Rocha who presented himself as a “neonatologist” to testify in favor of the Prosecutor’s hypothesis, but without having the expert specialty.
The case included more than 15 incidents and 136 writs presented from the technical defense –which Deza carried out together with his colleague from the MxMSofía Gandur Foundation– to refute each of the judicial attacks.
“Prosecutor Gianonni even granted the role of plaintiff to the girl’s boyfriend, under the figure of” father “, even though there was a fetal death certificate that prevented a link of filiation and despite having informed the Civil Registry that it was impossible to register a live birth with that documentation, “said Deza.
Almost three years after the judicial persecution against Clarita and her parents began, on June 15 the Supreme Court of Justice of Tucumán annulled the trial against Hugo and Teresa, maintaining that “the defense is right when it maintains that they did not had managed to demonstrate the existence of a person who could be considered a victim of a homicide, the lack of an essential element in a homicide case is configured, and of course, of its aggravating factors.” The high provincial court indicated that “the hypotheses generated by the Prosecutor’s Office itself – based on conjectures – were not enough to establish the fact of homicide or the probable authorship, participation or responsibility of the accused.”
Former prosecutor Gianonni resigned from her position after the MxM Foundation asked her for her political trial in 2020 for her arbitrary intervention in another case. Teresa, Hugo, Clarita and her siblings were forced to leave their house, the first house of their own that they had accessed in their lives when the neighbors threatened to lynch them, fueled by the journalistic coverage that designated them as “the murderous grandparents”. After that, the children in the family changed schools to preserve some privacy, Deza said.
“The social stigma of any criminal investigation is very violent. If we add to it, in conservative societies, the moral condemnation of fetal or neonatal death, the cocktail is even more harmful”, pointed out the lawyer. Now it is Ana who is sitting on the defendant’s bench. Again without evidence, again with prejudice they intend that the case ends with a conviction.