The federal trial of two illegal immigrants from Mexico charged with kidnapping and raping a mentally disabled woman in Washington County has been delayed because the defense says it needs time to hire an expert to evaluate her mental condition.
The trial of Jesus Tapia, 37, and Elmer Ramirez, 44, both roofers living in the United States illegally, was supposed to start next month, but a judge in Wheeling, W.Va., has pushed it back to April to allow more time for the cognitive analysis.
The government already has introduced its own psychiatrist's report concluding that the Wheeling woman, 20, functions as a child of about 10.
Her mental capacity is critical to the case because the two roofers say she showed no signs of mental deficiency and agreed to have sex with them.
The FBI and the U.S. attorney's office say the two men kidnapped her July 7 from outside her home and held her captive at Mr. Tapia's house on Wylie Avenue in Washington, where they raped her for four days.
There's no question the two men engaged in sexual activity with the woman; the FBI found DNA from both on her clothes and skin. The legal issue is willingness.
Federal prosecutors say the woman, 19 at the time of the incident, is so childlike that she was unable to give consent.
But lawyers for the roofers say they need their own medical expert to determine whether she has the ability to give consent.
"It seems the government plans to proceed at trial under various theories of sexual assault, including forcible rape, rape by way of threats or a theory that the accuser lacked the ability to consent to sex legally," they wrote in a joint motion.
Also in dispute is whether the woman was kidnapped. Defense witnesses say she was not held captive and was free to go, but prosecutors said a jury will have to decide.
"While the defendants' friends may say that the victim was not being held against her will," they said, "the jury has the right to believe that a 20-year-old girl functioning at the age of an 8- to 10-year-old girl did not have the ability or will to voluntarily leave the presence of the defendants."
Federal agents said Mr. Tapia and Mr. Ramirez were circling the Elm Grove neighborhood of Wheeling on July 7, looking for someone to rape, when they abducted the woman.
But the men say they had attended a party in Wheeling and offered her a ride after spotting her walking along the interstate in Pennsylvania. They took her to Mr. Tapia's apartment and said she went with them willingly.
They said the woman stayed with Mr. Tapia for several days, went out to eat and socialized with other people in the apartment building. When the men learned from a TV news report that a search party was looking for the woman, they said they drove her back to Wheeling.
The case could prove challenging for prosecutors.
The woman said the two men who abducted her did not speak fluent English, but she could not describe them, their car or where they went. She said she saw the "Welcome to Pennsylvania" sign on the interstate, but she didn't know what city she was in.
She also denied sexual activity when first questioned by Wheeling police. But in a subsequent forensic interview at a child advocacy center attended by the FBI, she said both men forced themselves on her.
Torsten Ove: firstname.lastname@example.org of 412-263-1510.