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Federal Courts: Sex Assault Zombies

February 14, 2013

In honor of St. Valentine’s Day here at ZombieLaw are some U.S. Federal Court opinions with the word “zombie” involved in sex crime.

Zombie is related to sex crimes in many ways. It can describe the victims, abusers and witnesses. Victims may be intoxicated (alcohol, drugs, medication) or otherwise emotionally/mentally incapacitated and unable to prevent their assault. Perpetrators may also be intoxicated or otherwise in a visible rage or aggressive stupor. And the witnesses may succumb to crowd psychology and do nothing tp help (see Genovese syndrome) or worse conspire to join the acts.

See Jennifer Cook, v. Greyhound Lines, Inc., 847 F. Supp. 725, (February 24, 1994):

Walker locked the Plaintiff in the rest room and attempted to force her to perform oral sex upon him. But, according to Eagle Feather’s account, the Plaintiff came bursting out of the rest room, clothes disheveled and crying. Walker’s appearance was also one of disarray. As Eagle Feather explained:

He was grabbing her by the arm, trying to pull her back into the bathroom. * * * And she was getting loud, [saying] “No. Just leave me alone. Just leave me alone. Let me go back to my seat” * * *.

Eagle Feather concluded that the Plaintiff had expressed these statements in a voice that “the driver definitely would have heard.” Indeed, Eagle Feather recalled seeing the driver look up when the Plaintiff had informed Walker to leave her alone. As Eagle Feather recounted, when “Walker saw the driver looking up, he stopped pulling [the Plaintiff] and put his hand over her mouth. * * * And he let her get back into the seat.”

When she exited the rest room, the Plaintiff recalls that she was looking around and “screaming and kind of pleading with everybody, and people just sat there like zombies.”

And see WILTON RICHARD GARCIA, vs. KATHY MENDOZA-POWERS, 2008 U.S. Dist. LEXIS 120280 (June 27, 2008):

Defendant removed his shirt. As he and Doe sat on the bed, she told him that “there wasn’t going to be anything like that.” Her comment meant that she was not interested in sex. When Doe said that she was not feeling well, defendant told her that she would “feel a lot better in a little while.” Defendant took off his clothes, and then removed Doe’s pants and underwear. When she moved back and said, “No,” defendant moved her legs apart. He orally copulated her, and she told him no again and moved towards the back of the bed. She also “pulled his hair and pushed his head back away” from her. Doe felt “really heavy” and it was harder for her to move. Defendant told her not to worry, because he had a condom. After his penis entered her vagina, she “moved back away from him again and told him no.”

When there was a knock on the door, defendant got up and threw Doe’s clothes at her. Since her body still felt heavy, it was difficult for her to put on her clothes. Defendant then opened the door, and Zeisbrich and Seymour entered the room. Defendant was wearing pants, but not a shirt. Doe was lying on her side in bed. Zeisbrich spoke to her, but she did not respond. Zeisbrich, Seymour, and defendant then joined Doe in bed.

Doe felt nauseous and went to the bathroom. It was very difficult for her to walk, as if she weighed “400 pounds.” She could not walk in a straight line. She “wasn’t sure if what happened really happened.” She was “still confused.” She testified, “I couldn’t-I couldn’t really talk at that time. I tried to get the words out, and I couldn’t really-it was, like, faint. And I was telling him to get out, but I know I was like, whispering. I know I couldn’t-like, I had, like, no energy, like, where I was losing my energy. And he walked in. And I still was getting sick, so he was holding my hair back because I was throwing up.” She could “barely” stand up, and was “like a zombie.” Defendant told her that she needed a shower, removed her clothes, and put her in the shower. After he began touching her breasts and washing her off, Doe lost control of her body and found herself on the floor. She could not feel her body and “could barely see.” When defendant asked if he could “mess around again,” she could not speak. She could not move and thought that she was dying. She told Westbrook that defendant had sexual intercourse with her on the floor.

And KELVIN EUGENE SIMS, vs. KELLY HARRINGTON, Warden, 2010 U.S. Dist. LEXIS 140077 (December 1, 2010):

Petitioner was convicted of committing multiple sex crimes against a 60 year-old victim whom he assaulted after breaking into her house at gunpoint and locking her husband in a bathroom.
[noting:] symptoms of PCP use may include extremely erratic behavior, fits of violence, and an almost zombie-like appearance along with rapid swings between rational and irrational behavior.

And UNITED STATES v. Staff Sergeant JOHN A. JACKSON, JR., United States Air Force, ACM 37417 (August 15, 2011):

SH testified that she felt sorry for Appellant and didn’t want him to think she didn’t like him. She wanted to show him that she still cared for him, but not in a sexual way, just as friends, so she asked him to close the door and sit down on the couch again. SH then took Appellant by the hand or arm, led him to the couch, sat down next to him, and put her hand on his knee to calm him down. SH told him that she still liked him but didn’t want sex. SH allowed Appellant to hug her but Appellant then attempted to kiss her again. She tried to push him away, but Appellant said she had to take care of his needs. Despite her repeated refusals, Appellant put his arm around SH and continued his advances. She started “crying and whimpering” but he wouldn’t stop. SH testified that Appellant didn’t threaten her or raise his voice, and described him as being “not violent but demanding.”

At this point SH felt “I just wasn’t myself anymore . . . I kind of left my body.” SH didn’t clearly recall how they got from the couch to her bedroom or how she and Appellant became undressed. SH testified she thought Appellant led her by the arm, but not in a rough manner, or she followed him in a “zombie way” to the bedroom. She said it was a “weird memory . . . we were on the couch and suddenly we were in the bed.” Once they were in the bedroom, Appellant still had his arm around her and put SH on the bed, laid on top of her, and then engaged in vaginal intercourse. While this was happening, SH testified she didn’t remember having any thoughts: “I was just crying and I stared at the ceiling.” After Appellant was finished, SH felt sick and went to the bathroom to throw up. When she came out of the bathroom Appellant told her he was disappointed in her and then he left.

Following Appellant’s departure, SH called her friend Stephanie to come pick her up. When Stephanie arrived, SH was crying and she told her friend what had happened with Appellant. Stephanie saw a wet spot on the sheets and put them in a bag in case the police needed them. Stephanie wanted SH to go to the police that night but SH refused. Instead she went to Stephanie’s house to spend the night. At trial, when asked why she didn’t go to the police that night, SH testified “I don’t know—because I hadn’t figured it out yet if it was my fault.” When asked why it would have been her fault, she testified: “Maybe because I really didn’t fight him off. Like, I tried in the beginning but then I just let him do this. I could have, whatever, tried to kick him, use all of my power and my body to fight him off and I didn’t do it.” When asked why she didn’t fight him off, she said, “I don’t know. I just wasn’t myself anymore.” SH offered that maybe she thought Appellant would become violent or that it would become worse if she fought back. She said she really didn’t know why and wasn’t really thinking at the time.


The record before us convinces us beyond a reasonable doubt that ETSN TL was substantially incapacitated, and that the appellant had no reasonable mistake of fact as to her consent. ETSN TL had at least seven drinks while at the bar and fell down twice while there. At the diner, she fell asleep. Although the surveillance cameras from the motel record ETSN TL walking on her own into the building, she is hugging the wall in one hallway, and is passed out standing up at the exterior door. The record also offers abundant evidence that she was substantially incapacitated in the room. ETSN TL testified that she was barely able to move, “pretty much like a zombie,” and unable to stop the sexual activity due to her intoxication. Record at 662-63. ETSN Northrup testified that, when the appellant had sex with her, he did not see ETSN TL move or actively participate in the sexual activity. ETSN Northrup had sex with her shortly after the appellant and testified that she was unresponsive at that time. That testimony is corroborated by the videos taken by ETSN Ariston, which show her inert while ETSN Northrup and ICFA Wylie had sex with her. There is no doubt that ETSN TL was substantially incapacitated.

The appellant took the stand at his trial and testified that ETSN TL had consensual sex with him and that he was then surprised to see her have consensual sex with his companions as well. His testimony was not credible. Based upon her intoxication and in light of all the circumstances, we are convinced beyond a reasonable doubt not only that ETSN TL was substantially incapacitated, but also that the appellant knew she was not consenting to sex with him, and that no reasonable adult would have believed that she was consenting.

Finally (and because Valentine’s Day is also about the moms) this convicted double-rape-sodomy-murderer had his death sentence vacated in part because his adoptive mother was described as zombie, FRANCIS HERNANDEZ, v. MICHAEL MARTEL, Acting Warden, California State Prison at San Quentin, 824 F. Supp. 2d 1025 (August 16, 2011):

One month after the denial of the application to adopt a second child, Naomi attempted suicide for the first time. She was hospitalized for several months and diagnosed with schizophrenia during that time. She was treated with Mellaril, which prevented her from functioning normally. (Id. at 54, ¶¶ 150-52.) Her family described her as a zombie who was flat in affect, moved in slow motion, dragged her feet and was like a walking dead person. (Id. at 60, ¶ 154.) She was suicidal upon her release from the hospital and fantasized about hanging herself. She attempted to overdose on sleeping pills. … When medicated, Naomi could barely function. The house was dark and very disordered, and people described Naomi as weird or zombie-like.

In conclusion, the zombies are everywhere, be careful how much you drink and try to stay safe.


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