What is sexual violence?
A former Kansas prison employee accused of sexual misconduct claims the charges aren’t valid because state law cites consensual touching — and his alleged interactions with the women weren’t consensual.
Tomas Co, who taught women how to make dentures at Topeka Correctional Facility, is charged in Shawnee County District Court with five felony counts of unlawful sexual relations.
The crime is defined as “engaging in consensual sexual intercourse, lewd fondling or touching or sodomy” between a corrections employee and an offender.
Co’s attorney Christopher Joseph argues in a brief that the charges don’t fit the statute’s definition because witnesses testified that the incidents were not consensual.
He also contends the adjective “consensual” as written in the law applies to each sexual act, not just sexual intercourse.
“There is an entirely different set of crimes that apply to non-consensual acts, ranging from misdemeanor sexual battery to rape,” Joseph said in an emailed statement. “Regardless of what crime is charged, I believe that Dr. Co will be acquitted at trial.”
Five witnesses testified during a preliminary hearing in June that the touching was not consensual. One woman in the program said Co had her put her hand in his pocket, which had been cut out, and touch his penis.
Another said he made a body pillow using an enlarged photo of her. Others said he inappropriately touched their hands, thighs and pelvic area.
The Shawnee County District Attorney’s Office disagreed with the defense’s interpretation of the law.
“To require the State to prove that the sexual conduct was ‘consensual’ as an element of unlawful sexual relations would lead to an absurd result,” a brief said.
Prosecutors also contend “consensual” as it is written in the statute only applies to the first listed offense, sexual intercourse, and not the others that follow.
“We believe the defendant’s conduct was prohibited by the statute we relied on to bring these charges,” District Attorney Mike Kagay said. “If the court disagrees, then I will address this issue with the legislature in the coming year.”
Kansas Rep. Russ Jennings, R-Lakin, who chairs the corrections committee, said he wanted to see what a judge decides about the charges in the case.
Though he thinks the judge will deny dismissing the charges, Jennings said if there’s a need to clear up the language he expected the Legislature would do so.
Julie Abbate, a lawyer with Just Detention International, commended Kansas for criminalizing consensual contact between a prison employee and an inmate.
But, she said, it was odd that non-consensual activity wasn’t written into the law.
“If there’s really no other way way to charge him for his conduct, I would imagine that a state legislature such as that one would go ahead and remedy any language issues there may be in that statute,” Abbate said.
She pointed to wording in the Prison Rape Elimination Act which says sexual abuse can occur with or without consent.
While consent itself is questionable because of the power differential that exists in a correctional setting, Abbate said, the PREA definition puts the focus back on the actions of the accused.
Jesse Lerner-Kinglake, a spokesman for Just Detention International, said the Kansas case illustrates a wider pattern of abuse that takes place behind bars.
About 200,000 incarcerated people are sexually assaulted each year, according to a government estimate. Lerner-Kinglake said that figure is a “clear sign of a human rights crisis.”
Though an August 2017 report recommended Co be terminated for his conduct, he wasn’t fired until December 2018.
“What I think is really striking and particularly appalling is just how the system really failed these women who were victimized,” Lerner-Kinglake said.
A probable cause ruling will likely be handed down at the next hearing set for August 16.