‘A hot mess’: Tossed sexual touching case of Topeka prison dentist is not over yet
The incarcerated women who alleged sexual harassment by Tomas Co, a dental instructor at the Topeka Correctional Facility, deserve justice, and that’s why the Shawnee County district attorney should continue pursuing it.
The Kansas Court of Appeals said that Co’s repeated stroking of the hand and the clothed upper inner thigh of an inmate wasn’t “lewd,” and last week overturned his January 2020 conviction for having unlawful sexual relations with her.
But there were more accusations, including one from an inmate who alleged that Co forced her hand into his pocket, which she said he had cut the bottom out of, and made her rub his penis. But during his trial, other than the inmate’s word, there wasn’t evidence to support the claim. Video from the dental lab had been reviewed by a Department of Corrections investigator but then disposed of. No one else saw it. And as is often the case, inmate or not, the women’s claims were not believed. Not by the jury.
The ruling on the appeal says: “The state could have charged Dr. Co with a different offense that did not require the showing of ‘lewd touching or fondling’ and criminalized other types of touching, but the state chose not to pursue that charge.”
“The state will seek to petition the Kansas Supreme Court for review of this case as we believe the Court of Appeals decision was erroneous,” Shawnee County District Attorney Michael Kagay said Wednesday in an email.
“If the Supreme Court declines to correct the interpretation of the Court of Appeals, the District Attorney will pursue a legislative change,” to the statute, the DA said. That won’t change the outcome of the Co case, but if Kagay loses a second time, he should not give up on getting changes to allow justice for other women in the future.
In this case, the state went for harder-to-prove felony charges against Co rather than misdemeanor charges such as sexual battery.
Kagay didn’t say why he did not file any other charge against Co.
What is clear is that Co’s conviction was not dismissed because a court found that he didn’t do the things he is accused of, but because the charge did not meet the statute in which the touch, not the intent of it, had to be considered “lewd.”
He was originally charged with eight counts of having unlawful sexual relations with an inmate. But two of those charges were dismissed. He was tried on six charges. In January 2020, Co was convicted of only one, sentenced to 32 months in prison and made to register as a sex offender.
Co was employed as an instructor beginning in 2013 by the state’s only correctional facility for women. He taught inmates to make dentures as part of an employment training program. Nine women complained he sexually abused them.
As inmates, they could neither quit nor leave to get away from their abuser. Any type of sexual relations between a corrections staff member and an inmate by federal law is considered sexual abuse — even if both parties consider it consensual, because inmates can not give consent.
The state had an obligation to protect these women. And if the state failed to do that, which it appears it did in this case, then it has an obligation to prosecute to the fullest extent of the law.
Co’s attorney, Chris Joseph, called the KDOC investigation “a hot mess.” Since when does an investigator toss evidence, no matter who it favors, before the trial?
Co cannot be charged again in this case. That would constitute double jeopardy. If Kagay’s only avenue now is to the Kansas Supreme Court, then that’s exactly where he should take this case.