The attorney for Tomas Co wants charges dismissed because the statute for unlawful relations with an inmate is written to forbid consensual sex abuse, and Co's former students say his advances were unwanted.
A prosecutor for the Shawnee County District Attorney's office says the argument is "absurd" and an attempt to reduce felony charges to misdemeanor sexual battery.
Legislators say they could end up clarifying the state law, regardless of how the judge rules in the case. A hearing next month will determine whether the case will proceed to trial.
Co faces five felony charges of unlawful sexual relations with inmates at the state-run women's prison in Topeka, where he worked as a dental lab instructor from 2011 to 2018. Two additional charges were dismissed for lack of evidence.
Topeka Correctional Facility's dental lab program, which trains inmates to make dentures, was designed to provide inmates with a marketable skill following release. Women who took part in the program viewed Co as a "trick," or someone they could use for money or favors.
Co used his authority to prey upon the women, they say, and presented them with gifts — such as food, makeup and coffee — while promising to hire an attorney who could get them early release.
One of the women testified in a preliminary hearing that Co removed the pockets from his pants so he could compel her to rub his penis until he ejaculated. She said she initially declined to cooperate with an investigation into Co's behavior because she was embarrassed by the experience.
"I felt like if I did say something, I would be turned against with everybody," she said. "Everybody considered that as their way to make payments in here. Like, they needed that job for financial help. And so when it comes to other inmates, you know, I would feel like I'm the enemy because they would be mad at me for the fact that I took their job away. So they always stuck up for him."
Other inmates say Co touched their breasts, bottom and between their legs, stuck his tongue in the ear, told dirty jokes and made a body pillow in the likeness of an inmate. All of the women who accuse Co of sexual misconduct say they never provided consent.
The state law under which Co is charged defines unlawful sexual relations with an inmate as "engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy."
Rep. John Carmichael, a Democrat from Wichita who serves on the Corrections and Juvenile Justice Committee, said the point of the law is "no one can truly consent to having sexual relations with a person of authority in a prison setting.”
“That type of conduct is and should be a felony and needs to be punished as such," Carmichael said.
But the attempt by Chris Joseph, the attorney representing Co, to have the case dismissed is "probably good lawyering," Carmichael said, and the Legislature should revise the language "to make it abundantly clear" that the law applies to non-consensual sexual abuse.
In court filings, Joseph said there is "no support in English grammar" for the charges against Co.
“At the preliminary hearing, each complaining witness affirmatively denied that she consented to the conduct underlying the defendant’s charges," Joseph said. "With this undisputed testimony, the state failed to show probable cause that the defendant committed the crimes charged. The charges against the defendant cannot stand.”
Roger Luedke, a prosecutor in the D.A.'s office, said Joseph's argument would mean punishing consensual conduct more severely than non-consensual conduct.
"To require the state to prove that sexual conduct was consensual in a situation where the ability to freely consent is questionable would lead to an absurd result," Luedke said.
Sen. Molly Baumgardner, a Republican from Louisburg who serves on corrections and judiciary committees, said the issue could come up when legislators return next year and the Kansas Attorney General's office makes recommendations for laws that need to be clarified.
Co's alleged actions, she said, involve an "egregious breach of authority" over his students.
“Folks who are incarcerated deserve to be protected," Baumgardner said.
Prison staff and Kansas Department of Corrections officials knew for years about concerns with Co's behavior. In 2017, the warden and a federal auditor both recommended he be fired, but the deputy secretary for KDOC at the time allowed Co to remain.
The charges against Co include allegations of abuse that happened after the decision to let Co stay. He was suspended in November 2018 and fired the following month. Prison investigators met with the D.A.'s office after Gov. Laura Kelly's administration took over in January, and a warrant was issued Feb. 1 for Co's arrest.
At the preliminary hearing last month, inmates said they featured retaliation for complaining about Co.
"I didn't want to be punished like everybody else had been punished," one of the women said. "Every time they report something, the only ones that were punished were the victims, were the girls that this was happening to. They were sent to the compound, and they ended up losing their jobs ultimately, and nothing was ever done. He still remained in his position."
One of the former students said corrections officials just wanted to hear "that it was a great opportunity, and that I loved being in there."
"It was a miserable job, actually," she said. "It really was. I enjoyed the work, but I didn't enjoy the environment."