A 62-year-old woman arrested in June 2019 for practicing clandestine abortions in an old house of Street Miter at 1200, was sentenced to one year of conditional prison and rules of conduct for illegal practice of medicine and usurpation of title. The modification of articles of the Penal Code after the promulgation of the law of voluntary interruption of pregnancy (IVE), which contemplates the limit of 14 months of gestation maximum to perform an abortion and the will of the pregnant woman, among other special circumstances, influenced in the middle of the investigation so that the Prosecutor’s Office desisted from accusing her for three acts of abortion that she had accused originally.
On June 21, 2019, a retired 83-year-old gynecologist and a woman who worked with him in a messy office without basic hygiene measures, in 1200 Miter, were arrested for performing clandestine abortions. The prosecutor Aníbal Vescovo, from the Investigation and Trial Unit, had started an investigation a month earlier after receiving anonymous complaints that warned about this risky activity.
A progressive law
Meanwhile, in this context, different social and political sectors of the country were advancing to achieve the necessary consensus that would allow the approval of the safe, legal and free abortion law. In turn, the woman and the man detained were charged with three abortions, and of illegal practice of medicine, in the case of the woman, because she had a professional seal and trout registration.
In the imputative hearing, Bibiana Gómez was attributed with having carried out practices of surgical interruptions of pregnancies by the method of “Local anesthesia and aspiration of the fetus” in the house of Miter 1224, which ultimately belonged to Sixto M., the co-defendant, who had a secondary but essential participation in the illegal practices.
In September 2020, the prosecutor Vescovo, together with the lawyer Leopoldo Monteil on behalf of Gómez, presented before the Office of Judicial Management (OGJ) an abbreviated procedure where the behaviors were classified under the figures of “abortion, three facts in real competition, and illegal practice of medicine in ideal competition with usurpation of titles ”.
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The agreement stipulated a sentence of three years of conditional prison and rules of conduct for those crimes typified in articles 85 (section 2) and 208 (section 1) in ideal competition with articles 247, 45, 54 and 55 of the Penal Code. However, that agreement was put on hold amid debates over the law on access to voluntary termination of pregnancy, which was enacted in December and enacted in January 2021.
Change of procedural situation
The new regulatory framework changed the legal situation of the accused. The IVE stipulates that women and people with other gender identities with the capacity to gestate “They have the right to decide and agree to terminate their pregnancy until the fourteenth week, inclusive, of the gestational process ”.
When Law 27,610 was enacted, sanctioned by the National Congress, changes were made to the Penal Code, thus causing the substitution of articles 85, 86, 87 and 88 that typify the crime of abortion (see separate).
In a new agreement between the parties, the prosecutor described that from the modifications to the Penal Code “The crime of abortion attributed to Gómez is no longer classified”. It is that during the investigation “it was not possible to establish that the pregnancies that the pregnant women were carrying were beyond the 14th week.”
With a different context, the prosecutor applied “the principle of retroactivity of the most beneficial criminal law (Article 2 of the Penal Code) considering that it is not possible to convict for a non-existent crime, since it could not be proven in which gestation period the three practices attributed to Gómez were carried out. “It is not possible to determine whether or not the crime has been committed. It is not appropriate to condemn her for those facts “, remarked the prosecutor when resolving the case file in relation to that conduct.
Illegal practice of medicine
However, he maintained the accusation of the woman for the crimes of illegal practice of medicine in an ideal contest with usurpation of title. In this sense, the parties reached an agreement to close the case in an abbreviated procedure that, after making the legality check, Judge Eduardo Núñez Cartelle approved.
The prosecutor requested that Gómez be sentenced to one year in prison for conditional compliance and a series of rules of conduct (set address, refrain from consuming alcohol and drugs, looking for a job), which endorsed the judge with his sentence in a hearing that was held last Wednesday at the CJP.
As the Retired doctor co-accused in freedom had also been accused of the crimes of abortion, when the figure is extinguished, the prosecutor will request the file of the proceedings regarding their procedural situation.
Changes to the Penal Code
In relation to people who cause an abortion, the law of Voluntary Interruption of Pregnancy established modifications and replaced articles of the Penal Code. Article 85 says in reference to the one who causes an abortion that “will be punished with imprisonment from three to ten years, If it acts without the consent of the pregnant person. This penalty may rise to fifteen years if followed by death of the pregnant woman. And imprisonment from three months to a year if it works with the consent of the pregnant person, after the fourteenth week of gestation and provided that the assumptions provided for in article 86 do not mediate.
That article 86 describes that “abortion carried out with the consent of the pregnant person up to the fourteenth week inclusive is not a crime.. Outside of this period, abortion performed with the consent of the pregnant person will not be punishable if: the pregnancy is the product of rape, and if the life or integral health of the pregnant person is at risk.