Two illegal immigrants from Mexico charged federally with kidnapping and raping a woman in Washington County both say they are mentally challenged and so were not able to perceive that she was mentally deficient and could not consent to sexual activity.
The trial of Jesus Tapia Montes, 37, and Elmer Ramirez, 44, both roofers living in the U.S. illegally, is set for later this month, but both have filed numerous motions challenging the government's case.
In his latest court filing, Mr. Montes and his lawyer argue that a defense psychologist recently determined that his IQ is 65 and that he is "mildly retarded," functioning at the level of a 12-year-old.
Mr. Ramirez and his lawyer filed a similar motion, saying a psychologist tested him last week and determined that his IQ is 72.
The lawyers say the lack of cognitive ability means they could not understand that the 20-year-old victim, who according to a government expert functions as a 10-year-old, was mentally deficient.
They have argued that the woman showed no signs of being mentally challenged and agreed to have sex with them.
The U.S. attorney's office in Wheeling on Thursday responded by asking a judge to reject that mental deficiency defense before trial, saying it is irrelevant.
Under the law, prosecutors said, "once they take the victim across state lines and form the intent to have sexual relations with her before they reach their destination in Washington, Pa., they have committed the crimes charged in all of the counts, even if no sex acts are attempted or committed."
The FBI said the two men kidnapped her July 7 from outside her home and held her captive at Mr. Montes' house on Wylie Avenue in Washington, where they raped her for four days.
Agents found DNA from both men on her clothes and skin, but the issue in dispute is willingness.
Prosecutors say the woman, 19 at the time of the incident, is so childlike that she was unable to give consent.
Also in dispute is whether she was kidnapped. Defense witnesses say she was not held captive and was free to go, but prosecutors said a jury will have to decide.
Agents said the two men were circling the Elm Grove neighborhood of Wheeling when they decided to abduct 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. Montes' apartment and said she went with them willingly.
Complicating the case is the fact that the woman initially denied sexual activity when first questioned by Wheeling police.
In a later forensic interview at a child advocacy center attended by FBI agents, according to the prosecution, she said the men forced themselves on her.
Torsten Ove: email@example.com or 412-231-0132.