In the Salvadoran justice system, in cases of rape of children under 15, a judge can absolve the accused even if it’s proved that they committed the crime. Between 2013 and 2016, 90 percent of these cases received impunity, including cases in which judges managed to justify that the minor “seemed older than her age” or that they believed in the perpetrator’s “good intentions” and through their ruling they intended for the victim and her assaulter to form a home together.
Martha didn’t remember the exact date, but she does remember that she was 11 years old when, in 2009, Jonathan “made her his.” He was 18 or 19. Martha said that Jonathan didn’t force her, that she did it because she wanted to, because each time he gave her $3 or $5. In the afternoons, Jonathan would invite her to the store that was near his house. Martha added that, even though she doesn’t remember how, a year later, when she was 12, José, Jonathan’s father, also “made her his,” giving her $5 or $10 in exchange each time.
Martha gave this testimony during the second half of 2013, and it appeared as part of the ruling in the trial against Jonathan and José. Since the rapes began happening when she was 12, Martha added, she visited the store two or three times a week to have sex with the two men.
In June 2012, when she was 14, Martha discovered she was pregnant. In a statement made to a forensic psychologist, Martha said she wasn’t sure if the baby was Jonathan’s or José’s. In September 2013, Martha’s mother decided to report both men to the authorities. Days later, José’s wife asked her to retract the complaint and, in exchange, offered to “help her with the baby.”
In El Salvador, having sexual relations with a child under 15 is always considered a crime, regardless of whether the perpetrator used violence or the victim gave their consent. The justice system has determined that any person between the ages of zero and 14 is “sexually untouchable,” since it is considered that during that stage in life, children do not yet have the physical nor intellectual capacities to decide on their sexual behaviors. This is a condition judges call “sexual dignity.”
Under this premise, Martha’s story made it to San Francisco Gotera’s sentencing court. Jonathan and his father were accused of raping a helpless minor. Martha, as the accuser, underwent medical examinations (including a genital inspection and blood and urine tests) as well as psychological evaluations. She also had to present a written declaration of the abuse and repeat her version of the events at least three times. She and her body were a key piece of evidence. Her child underwent a DNA test to corroborate that he was the son of one of the two accused perpetrators, as she said he was. The results of the DNA test were clear: the child was Jonathan’s.
Nine months after Martha’s accusation was presented to a judge, Jonathan and José were absolved of any civil and criminal responsibility. The sentencing judge, Óscar René Argueta Alvarado, argued that, because Martha didn’t show up to the sentencing stage of the legal process, nothing could convince him “by any evidentiary and pertinent medium” that Jonathan or José had raped her.
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Every crime against sexual liberty is prosecuted de oficio, which means the prosecution must investigate even if the victim retracts their accusation or does not testify before a judge. Additionally, a settlement between the parties is inadmissible.
El Salvador’s penal code criminalizes 15 actions that violate sexual liberty. This investigation by El Faro focused on one of them: the rape of a helpless minor, defined as the vaginal or anal penetration of a child under 15.
Between 2013 and 2016, the Attorney General's Office received 8,464 rape complaints. Of these, the majority - 60% - involved children under the age of 15 (80% of which were girls). When reviewing the records of complaints received by the Public Prosecutor's Office in the last four years, the municipality with the worst situation is Mercedes la Ceiba, in the department of La Paz. It recorded an equivalent of 366 cases of child rape per 100,000 children under the age of 15. This fact, although only an extrapolation because this municipality is one of the least populated in the country, still reveals the troubling likelihood that minors in this municipality will become rape victims.
And what happens the accusations of rape that are filed? Very little. Between 2013 and 2016, the Attorney General's Office was only able to bring 27% of them to trial. And, out of all the rapes reported between 2013 and 2015, only 10% resulted in a conviction.
El Faro reviewed statistical data provided by the Attorney General's Office and 284 public versions of the final sentences in cases of violation of a child or incapacitated person. Of these resolutions, 42% (119) were an acquittal, saving the defendants from a sentence of up to 20 years in prison. It can be concluded from these rulings that in some cases, even if there is a proven crime and the participation of the aggressor is confirmed by means of DNA evidence, the defendant may be acquitted. To rule on behalf of the defendants, the judges use arguments such as that the defendant was unaware of the law, that convicting the defendant would cause greater harm than benefit, that the rapist's motive was to form a home with the minor, or that the girl 'appeared to be “toda una señorita' -- a grown woman. It is one thing to prove there has been a crime, one judge explains, and it is another to prove that there was guilt.
In the context of the Salvadoran justice system, sexual violence against girls under the age of 15 has become so normalized that there are even those who talk about 'tasty crimes' or 'love crimes.”
It's Not Enough to Prove Crime and Guilt
What happened to Marta is common. The 119 exculpatory rulings revealed that, in most cases of sexual abuse of minors, the crime and even authorship is proven, but not who the culprit is, even if the perpetrator is sitting on the defendants' bench. This may seem like a paradox, but that's where the judges have the power to decide whether the intent of the accused is proven.
The lack of a statement by the victim, in front of the judge or on video, was the reason for 57% of the 119 acquittals reviewed by El Faro.
As stated in resolution TS-049-2014, Judge Argueta Alvarado never denied that Marta had been raped, but determined that, with DNA evidence, the prosecution only proved that the defendant had 'vaginal carnal access' with a child under the age of 15. What was missing was whether Jonathan had acted with the intent and awareness of committing a crime. That, by law, is something only Martha could prove because she was the main and only witness.
In El Salvador, the same Penal Code that establishes the framework for being considered a rapist also includes loopholes that can lead to an acquittal: the defendant’s ignorance of the child’s true age or that it was a crime to have sex with her.
That is why Argueta Alvarado needed Marta's testimony. Not listening to her meant he could not deliver a conviction. This is how Marta’s rape became part of the long list of sexual assaults against minors with impunity.
Article 4 of the Penal Code dictates that 'the penalty or security measure shall not be imposed if the action or omission has not been carried out with purpose and intent'. This provision is used by judges to require prosecutors to prove the intent of the rapist, even in cases where there is scientific evidence or a clear power prevails over the age difference between aggressor and victim.
From the perspective of the Attorney General's Office, when there is irrefutable evidence, such as DNA examination, the victim's testimony is not essential. Prosecutor Mabelin Ayala argues that in such cases there is merit for the defendant to be convicted. 'There is a proven crime because there is scientific evidence that for our judgment it is irrefutable. That is our standard and these acquittals should not occur. But in law there is a diversity of criteria and assessments.'
Arnaú Baulenas is the legal coordinator of the Institute of Human Rights at the Universidad Centroamericana (IDHUCA), and he believes that the legal classification of a crime under the Penal Code should prevail, particularly when paternity has been proven in the process. 'I am often surprised by what happens in El Salvador, because the judges say 'No, it is a problem of interpretation of the law.' No, no, this is not an issue of the interpretation of the law, this is an issue with a judge’s ignorance. The code is clear. If you're under 15, this is a crime and that's it.'
In June 2015, Enriqueta's case had the same outcome as Marta's: her abuser was freed because she did not show up to testify. The differences between the two, however, were abysmal: Enriqueta was forced into a relationship that she did not consent to. The judge held the prosecution responsible because, in his view, they were unable to present a solid case.
It was during the first days of December 2014 when Enriqueta, at around 9 a.m., decided to take a shower. Because of the layout of the house in which she lived with her entire maternal family, the bathroom was slightly removed from the rooms. While she was bathing, she noticed that Efraín was watching her. He had climbed on top of a laundry sink to look at her. Enriqueta covered herself with the towel and tried to return to the house, but Efraín got in the way and pushed her into the bathroom. He threatened her. He told her if she yelled 'she'd pay for it.' She asked him to let her go and he covered her mouth to avoid being heard by Enriqueta's aunt, who was at home checking her Facebook account, and Enriqueta's sister, who was watching television. He penetrated her anally and vaginally. When he ejaculated, Enriqueta took the opportunity to run to her room. She was getting dressed in her room when, again, she felt somebody watching her: it was Efraín, who looked at her through a window. Enriqueta said she didn't know if it was more out of fear or shame, but at the time she did not tell anyone about the rape. She was 12 years old, and Efraín, her uncle, was 43.
Like Marta, Enriqueta did not offer a witness account during the process. Alejandro Antonio Quinteros, a judge in the San Salvador trial court who came across her case, concluded that Enriqueta had been abused. It was demonstrated by genital, psychological and psychiatric expertise. But in the absence of the victim, Quinteros could not prove that Efraín had been her aggressor: 'It is acknowledged that important peripheral evidence exists, but that in this case it is insufficient, as the Public Prosecutor's Office recognized at the public hearing, in order to be able to prove the fact by which the accused was tried'. Quinteros shifted responsibility to the accusing party, who in his opinion, aside from the complaint filed with the police on January 3rd 2015, did not have enough evidence to support the accusation against Efraín, despite the details given by the victim.
Initially, the prosecution featured the statements provided by Enriqueta and her mother. However, at some point in the process, her mother (who was also her legal representative) stated her desire to drop the lawsuit. According to Mabelin Ayala, the prosecutor in charge of the Children's, Adolescents’, and Women's Unit of San Salvador, even if the victim disappears, they are required to continue the investigation. 'It is mandatory to investigate with the police: if there was any evidence left at the scene (any samples, such as parts of the victim's clothing) or if there were any witnesses. The investigation is always exhausted even if the victim is not there, it is always an obligation - she stresses - to exhaust all the resources that are available.'
On the night of January 3rd, Enriqueta's mother learned that Enriqueta had not gotten her period since her first time two months before. She found this strange and began to question her. Enriqueta confessed to her about the December episode and Efraín was confronted by his family. The man said the young girl was a liar and left the house. Enriqueta and her mother went to the police to report the rape. Efraín’s assault in December had actually been the second. In February 2014, he had raped her for the first time and also threatened her: if she told someone he would 'make her pay.'
In addition to joining the list of crimes with impunity in El Salvador, Enriqueta's case helped put the country’s judicial system under the magnifying glass of international observers. The ruling in favor of Efraín was nominated by the worldwide organization Women’s Link to receive the “Garrote” recognition of the year 2016. This is a recognition made to the statements or decisions by judges that have had a negative effect on gender equity, including those related to sexual and reproductive rights, gender-based violence, and gender discrimination. El Salvador did not get enough votes to obtain the Garrote in 2016, but this and two other cases had been nominated.
Quinteros told El Faro that psychological and psychiatric evaluations were not enough to prove that Efraín was Enriqueta's aggressor: 'It does work because the girl presents a story and we can verify that there has been consistency. But the complaint cannot be taken as a statement.' The case went through the courts without any qualms, but when it was time for sentencing, the judge said, 'I need to be certain he is the aggressor.' While he clarifies that it was not strictly necessary for Enriqueta to give her statement in person, prosecutors failed on three occasions: the first, they failed to get a victim statement through the Gesell chamber (an isolated room where undisturbed statements can be made); second, they left out statements from legal medicine experts; and finally, they failed to present a witness to certify the victim’s testimony. 'He could have presented the prosecutor who interviewed her, but the problem is that sometimes the person who receives the complaint is also taking the case to court.'
Absolution in the Name of Love
When it comes to minors, the law dictates that the presence of the victim at trial is not mandatory and that they can be questioned in a non-formal environment. Since October 1, 2010, El Salvador has used Gesell rooms to allow minors to give their statement in an isolated environment and in the presence of a psychologist. The idea is to prevent intimidation by avoiding having them testify before their aggressor. In El Salvador, there are only six of these rooms for all 262 municipalities. In San Salvador and Zaragoza, prosecutors Mabelin Ayala and Silvia Saca, respectively, claim that all minors who are victims of rape give their statement in this manner.
The accusing party may resort to different mechanisms in the event that the victim's advance statement is not obtained and the victim disappears, but their version of events remains the ultimate test. This is acknowledged by the Attorney General's Office itself: 'Testifying in the Gesell chamber gives a 99.9% guarantee that the accused will be held accountable, a situation that does not happen when the testimony has not been received in advance, because the child or adolescent suffers physical or emotional difficulties when confronted by their aggressor that prevent them from giving an accurate testimony. So the judges, if they receive no official declaration, can absolve the accused of liability.”
43% of the acquittals reviewed contained testimony from the victim. However, the fulfilment of this requirement did not always lead to a conviction. The cycle of impunity was repeated, sometimes because the judge did not believe the victim, sometimes because he considered that the defendant's real intention was to start a family, and sometimes because he blamed the victim for what happened.
A July 2013 resolution tells the story of Graciela, a 13-year-old who claimed to be the girlfriend of Bruno, her 25-year-old neighbor. The complaint was made by Graciela's mother, Carmen, the day her daughter, without warning, returned home at 5 a.m. The daughter confessed that she had stayed with Bruno and that she had sex with him. Carmen had spent the entire night praying for her daughter to return home safely. Once she was put in front of the judge, Vilma Adela Melara of the Santa Tecla sentencing court, Graciela confessed that she had actually had sex with two boyfriends before Bruno and that she had started seeing him a year before her mother found out. According to Graciela, Bruno never forced her, although she consented at his request.
Forensic evidence once again proved the crime: the DNA of the semen found in the child’s vagina belonged to the defendant. The psychologist concluded there was 'early psychosexualization” caused by an adult who had taken advantage of her emotional vulnerability, seducing her to generate an emotional bond with him.' Graciela exhibited symptoms of sexual abuse.
Bruno was nonetheless acquitted. The judge reinterpreted article 159 of the Penal Code which protects children under 15 against the crime of rape, lowering that age limit. According to her, until the age of 12 children are sexually untouchable since, due to their age, they cannot have knowledge of the subject. In contrast, between the ages of 13 and 14, the law no longer protects teenagers by claiming they are untouchable, in order to allow them to have a normal development of their sexuality. '... This is because at that age there is already an educational development oriented by teachers and parents themselves about what a sexual relationship is.'
The judge considered that because of her age and because she’d had previous sexual relationships, 'Graciela knew what a sexual relationship was and understood the relationship between her and Bruno.' She had no excuse. Therefore, the judge said the right protected by the law 'had already been violated by a different person and if there is no legal right being protected, we cannot speak of a crime.' The judge also blamed the mother, who she said was too tolerant of her child’s actions. 'I notice,' she said, 'that Graciela has much more character and is more aggressive than her mother.'
The judges interviewed for this story justified their decisions referencing article 179 of the Code of Criminal Procedure, which instructs judges to assess the evidence according to the rules of 'healthy criticism': logic, psychology, and personal experience. It is expected that, through this intellectual exercise, the judges will make a correct assessment and leave behind any doubt when delivering a judgment. Legal doctrine commands that this assessment be sincere and in good faith.
Because it's 'tradition' and she's 'a grown woman,” not a child.
The 119 acquittals reviewed by El Faro show that, at times, this 'healthy criticism' is punctured by gender and age prejudices that end up blaming and discrediting victims, and even end up justifying rape as a characteristic of Salvadoran society.
That's what happened in Estefany and Alonso's case. He, 25, took Estefany, 12, to live with him. Before moving in with Alonso in March 2013, Estefany lived under the care of her older sister and grandfather. Her mother lived in the United States and had somehow learned of the relationship between Alonso and her youngest daughter, fully opposing it. Two months after Estefany left her home, her sister filed a complaint alleging that Alonso had taken Estefany 'to build a life with her,' that he was physically and verbally abusive.
The case reached the desk of Judge Alejandro Hernández Robles, of the San Francisco Gotera sentencing court. In her testimony, included in the resolution 075-2013, Estefany said that she loved Alonso, that Alonso had never forced her to do anything, that he had never mistreated her, and that she did not want him to be imprisoned. He said everything that happened between was consensual, that he knew that she was younger but that he fell in love. 'When love comes, it doesn't check for age or religion,' he said, adding that his desire was to start a family, and that's why he took her to live with him.
The United Nations Population Fund’s (UNFPA) Study of Pregnancy in Girls and Adolescents in El Salvador 2015 revealed that, between 2013 and 2015, one in three pregnant women in the country was a teenager. Data from the Ministry of Health found that, in 2015 alone, 13,146 girls and teenagers aged 10 to 17 registered in prenatal control, 11% of which were 14 years of age or younger.
Under the framework established by the Penal Code - which declares that all 'vaginal or anal carnal access' with people under the age of 15 is a crime - prenatal registration can function as a measure of the number of girls who’ve been raped. In 2015, almost 1,500 girls registered because they were pregnant.
UNFPA has noted that early pregnancy is often linked to early unions or child marriage. Of the girls who were between 10 and 12 years old, 29% were already in a union with a male before their pregnancy and 17% were with a partner who was 10 or more years older than them. Of this group, girls aged 10 to 12, 1 in 10, were formally linked through marriage. In El Salvador, the Family Code allows people as young as 12 to get married, under certain conditions.
When Estefany gave her testimony to prosecutors, she corroborated the version her sister gave in the complaint, but with a minor but important difference. Sexual intercourse with Alonso began when he was 11, not 12. This case, like the others, left no doubt about the materiality of the crime. But judge Hernández Robles acquitted the defendant anyway.
According to the judge, there were two circumstances in Alonso's favor. One, he miscalculated Estefany's age and thought she was over 15; and two, he did not intend to commit a crime. Instead, he wanted to “build a life with her and start a family.” Hernández Robles determined that Alonso had no intention to commit a crime, and he wasn’t aware that he was doing so.
The Constitution of the Republic and the Civil Code in El Salvador dictate that once a law is published, it is understood to be known to all and no one can claim ignorance of it as an excuse not to comply. But for Judge Hernández Robles, Alonso's alleged ignorance was justified as a cause of exculpation because it was part of a “behavior that reflects society’s ingrained customs.” The trial then turned against the victim. The judge ruled that, particularly in rural communities, if a girl under the age of 12 or 13 has a “physical development that appears to be that of a young woman,” as well as a “minimum level of maturity to decide on her sexual freedom,” it is normal for them to engage in a sentimental relationship with a young man that can lead to the consummation of a sexual act.
For Arnaú Baulenas, the legal coordinator of IDHUCA, this kind of reasoning shows how, in El Salvador’s judicial system 'the concept of machismo exists as well as this idea that men have the power to do whatever they want.” This is an issue that, according to him, is evident even in judges, who often end up 'resolving something legal from an ideological positioning,' justifying themselves with the particular interpretations they make of the law. 'There is one thing we need to be clear about: if a judge rests their ruling on a particular article, that does not mean that it is a fair interpretation of the law.'
Prejudices about women and the normalization of men's violent behaviors as an obstacle to justice is something that has been pointed out by various organizations working on the problem. As early as 1998, the organization Las Dignas, in a study on sexual and domestic violence, concluded that many of the assessments that judges made in sentences relating to crimes against sexual freedom were based on the discrediting of women, characterizing them as provocative and consenting: 'All these viewpoints tend to favor offenders because they, ultimately, justify violence by minimizing or trivializing it.'
Nearly two decades later, the trivialization of sexual violence remains present, not only in judges’ reasoning, but also in the way they refer to these cases. Three sources consulted by this newspaper said that, within the judicial system, there are those who have created a special category to talk about this type of crime, calling them 'tasty' or 'love” crimes. “They are called tasty crimes,” a former San Salvador judge told El Faro. This term is part of the day-to-day jargon among judges and prosecutors, often used as a joke: 'In fact, the special prosecutor's unit specializing in violence against women is also called the unit of tasty crimes.' Another judge consulted by this newspaper said that they had often heard the term “love crime.”
The former judge said the term “tasty crime” already existed by the time she became part of the courts. It was used mostly by men, she said, but she admits that she used it herself on occasion. 'I knew it because a man told me about it but we women also used it sometimes. I've used it, but not with the victims.' She accepted that the expression is not only offensive to victims, but it is also a manifestation of the “sexism that is rooted in Salvadoran culture” and the devaluation of sexual violence.
In the fight against sexual violence, the Salvadoran state has accepted in its discourse the gravity of the problem; it has created laws and tools to combat it. In theory, justice administrators have more tools to protect victims whose rights have been violated: in 2011, the Comprehensive Protection for Children and Adolescents Act (Lepina) and the Equality, Equity and Eradication of Discrimination against Women Act (LEI) came into force. A year later, the Special Comprehensive Law for a Life Free of Violence for Women (LEIV) was also passed. However, the rights these laws protect are not being guaranteed, and the government is aware of this.
In July 2016, Health Minister Violeta Menjívar acknowledged that there are enforceability issues to the law and invited the judicial system to 'get involved in the issue.' Her statements were part of the presentation, together with the United Nations Population Fund (UNFPA), of the Child and Adolescent Pregnancy Map in El Salvador 2015. The study revealed that 30% of pregnant women were girls and teenagers between the ages of ten and 19.
The Family Code allows unions with children under 18 years of age if there is a pregnancy involved. Among the sentences reviewed by El Faro, there are judges who have acquitted defendants when the rape produces a child. These judges argue that they’re promoting the psychological development of the child by not sentencing the father. They say they do so with the best interests of the child in mind, something picked up from Article 350 of the Code. Thus, the rights of a girl under 15 who has conceived as the result of rape are relegated to the rights of a being in gestation or a child who’s already been born. 'What do I gain by separating a family? The idea is for the defendant to take over,” Judge Alejandro Hernández Robles told El Faro.
Since 1998, the Code of Criminal Procedure has undergone amendments that, for example, passed decisions in rape cases from the hands of a jury to those of a judge. Prior to July 2001, sentencing judges only got to see scientific evidence and witness accounts involved in all cases of crimes against sexual freedom, but they were not allowed to decide whether or not there was responsibility. If a judge believed that an injustice was being committed by convicting someone they believed to be innocent or by acquitting a culprit, there was nothing they could do about it. The verdict of the jury was incontrovertible. Their hands were tied. The only thing they could do was decree a civil liability against a defendant, without this going on their criminal record.
Fabiola is usually very restless. No wonder her teacher found it strange when, at the end of the 2000 school year, she noticed she was oddly quiet. The teacher asked her if anything was bothering her, and Fabiola explained that Stanley was groping her. The teacher brought the case to the school's principal and they sent for Fabiola's mother, Lorena. Days passed and Lorena did not answer the school’s call, so the principal called Joaquín, Fabiola's father. Teachers told him about the issue and Joaquin took his daughter to file a complaint with the Attorney General's office. In February 2000, Stanley had raped her. Fabiola was 11, and Stanley was 43. Fabiola's mother had been living with Stanley since 1998.
When Lorena heard about the complaint, she stopped sending Fabiola to classes and also went to the school to ask why the teacher and the principal had advised Joaquin to report both her and Stanley. In the end, they were both found not guilty.
The public hearing of the case took place in February 2002, and although the Code of Criminal Procedure had been reformed seven months earlier, the new provisions were not yet in force. That is the reason why it was left to a jury to make a final decision on the case. Unanimously, the five people who integrated the jury in the trial against Stanley decided he was innocent.
In Fabiola’s case, the defendant had to respond, at least financially, for the damage caused to the victim. 'I was convinced that there was sexual abuse and that was why I issued a civil conviction,' said the sentencing judge who settled the case. 'But my reasoning was rational according to the evidence, which could not be inserted or transferred to persuade the jury.' Stanley only had to pay $1,142 for the psychological damage to the child.
Every Year, Fewer Cases Come to Court
Between 2013 and 2016, there was a sustained decrease in both allegations of rape in a minor or a disabled person, as well as in the rate of injunctions. The Attorney Generals Office chooses to make an optimistic reading of the situation. 'I feel that in large part this could be attributed to a decrease in criminal acts,' says Lorena Morales, the prosecutor in charge of the Care Unit that specializes in violence against women. With regard to how cumbersome the process can be as a reason for victims to drop out of their cases, she excused herself by saying that this depends on the times, not the institution, and that those are dictated by the judicial system.
The relinquishing of justice by victims may also be attributed to their aggressor’s persuasive capacities, which can delegitimize the victim and can even lead to death threats.
A few weeks ago, Matilda had spent 14 days in the hospital. She spent Christmas and New Years’ in a bed on the fifth floor of a public hospital in San Salvador. It was December 27th when, suddenly, she saw Jorge's face in the bed next to her. Feeling afraid, she put a towel over her head and turned so she wouldn’t have to see him. When Fátima, her mother, came to visit her at lunchtime, Matilda did not hesitate to tell her. Fátima looked closely at the person in the neighboring bed and found no traits of Jorge anywhere.
This was the third time Matilda mistook someone for Jorge in the past two and a half years. Jorge is dead, but he is still alive in Matilda's mind and body. Jorge raped her for eight years and infected her with HIV. Jorge was her dad.
The 'you're going to disappear and nobody's going to notice' and the 'who do you think they will believe?' were recorded in Matilda's psyche at the age of 13. If she hadn't been diagnosed with HIV, no one would probably know about the abuse she was subjected to during those eight years. Matilda got rid of her assailant because another of his victims decided to report him.
Another factor that fuels impunity is family pressure. In cases such as Marta’s and Fabiola’s, this pressure helps cover up rapists who are often a family’s sole source of income. This is actually the main reason for complaints to be withdrawn, or not even filed.
Taking into account that the victim's statement and her body are the main evidence, the system forces her, once the complaint is filed, to parade before a number of specialists. In addition to asking the questions necessary to certify the validity of her testimony, experts will examine her body and extract samples. The idea is to prove the defendant is guilty of the crime they are accused of. The first step in making this happen, however, is for the accused to be captured and samples to be taken. If there is no DNA to compare with, the sample obtained from the victim is relegated to a cardboard box in the Office of Forensic Medicine.
Cumbersome processes, a lack of trust in the system, and revictimization are some of the causes experts cite for victims’ decision to abstain from reporting their assaults. Jennifer Méndez, an HIV physician, uses the case of a serial rapist in Santa Elena to explain patients' reluctance to follow the legal process. 'That case sent like 15 patients to the hospital. Only six decided to file a complaint; of those six, three followed the process, and only one came forward to identify him when he was captured.' Martín Antonio Guardado Mejía was sentenced to 94 years in prison.
From the outside, institutions that support young victims of rape have are less optimistic about the system, accusing it of revictimizing children. According to Mirla Carbajal, a lawyer in the IDHUCA judicial process team, the system is not prepared to support victims, because 'our criminal system uses the victim but it doesn’t strengthen her or give her psychosocial support.” While Carbajal believes that Gesell rooms are an important resource to ensure the protection of a young victims’ dignity, she criticizes the limited access to them and prosecutors’ disinterest in using them. 'There aren’t that many of them. There are victims who have to travel to San Salvador to offer their witness accounts, and not all prosecutors are making use of them. We've had cases where two days before the trial, a prosecutor has told the mother, 'there's a public hearing, bring me the girl,' without proper preparation from a psychologist.”
Deficiencies start much earlier. In the Salvadoran legal system, any proceedings are initiated by a complaint to the Attorney General's Office, since, by constitutional provision, this institution has exclusive access to the beginning of criminal proceedings. This monopoly was established as a guarantee of the institutional independence of the Attorney General's Office. However, when this institution malfunctions, it becomes an obstacle to justice.
Silvia Juárez of the Organization of Salvadoran Women for Peace (Ormusa) agrees that the judicial system, rather than respecting and preventing victims from being violated in their search for justice, uses them. The processes that increase fear and threats often push victims into disappearance, forcing them to abandon their search for justice. El Faro asked prosecutors what happens if, while the victim is missing, a judge decides to acquit the defendant because the victim’s testimony is needed. They explained that there are two appeals that could overturn a judge's decision: an appeal before a criminal chamber and an appeal before the Criminal Chamber of the Supreme Court of Justice. If the victim does not appear and these chambers end up supporting the sentencing judge’s decision, there is no more to be done. The search ceases. The crime goes unpunished.
* The report used fictitious names to refer to the victims and, except in Matilda's story, the accused are identified by their real names.
