Kansas appeals court overturns prison instructor’s conviction for unwanted touching of inmate

Court says daily touching of inner thigh doesn’t meet legal definition of ‘lewd,’ regardless of sexual desire

By: - December 29, 2021 9:00 am
Six women testified about the alleged abuse they suffered from Tomas Co, the dental lab instructor at the Topeka Correctional Facility. The jury believed one of the women, but an appeals court panel overturned the conviction. (Getty Images)

Six women testified about the alleged abuse they suffered from Tomas Co, the dental lab instructor at the Topeka Correctional Facility. The jury believed one of the women, but an appeals court panel overturned the conviction. (Getty Images)

TOPEKA — The woman who persuaded a Shawnee County jury to convict Tomas Co for sexual harassment and unwanted groping wanted him to understand what it was like to feel powerless and abused.

Last week, a three-judge panel on the Kansas Court of Appeals dashed any hopes of making Co think about his actions from behind bars. The court overturned his conviction on the basis that touching an inmate’s inner thigh every day with sexual desire and no consent doesn’t qualify as “lewd.”

As the dental lab instructor at the Topeka Correctional Facility, at least a dozen women complained about Co’s behavior for five years before he was fired in late 2018 and later charged with six counts of unlawful sexual relations with an inmate. Six women testified against Co at his January 2020 trial, but jurors refused to believe five of them.

Three women spoke about their experience — feeling helpless as Co’s students and dehumanized by the correctional system — in a post-trial interview inside the prison. Kansas Reflector doesn’t identify victims of sexual assault without their consent, and the women asked not to be named.

The women had different ideas about what should happen to him. Some wanted prison time, which had been put on hold while Co appealed his case. Others just wanted to make sure he could never again work with vulnerable women.

The lone woman who persuaded jurors of Co’s guilt said she wasn’t sure what justice should look like in this case.

“My main concern is that he doesn’t understand what it is that he did,” she said. “I believe that he doesn’t think he’s done anything wrong. And I just wish that there was a way for him to understand what it feels like to be on the other side of the power differential.”

Co touched the inside of her clothed leg above her knee almost every day for months. He obtained a photograph of her and said he would use it to make a body pillow in her image.

“There is no doubt that the evidence showed Dr. Co’s touching was inappropriately motivated, unprofessional, improper, and made (the woman) uncomfortable,” the court wrote. “This court does not condone his conduct, nor should the parties understand this opinion to suggest that a person must permit or acquiesce to any type of unwanted touching, including touching that may not be considered legally ‘lewd.’ ”

Touching is considered “lewd” only if it “is sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; or indecent, obscene, or salacious,” the appeals court wrote. Co’s intent, the court said, is irrelevant.

Judges Karen Arnold-Burger, G. Gordon Atcheson and Jacy J. Hurst determined it was “more likely than not” that Co had “sexual, personal or intimate feelings” toward the woman. The touching was “inappropriate and unwarranted.” But the touching wasn’t “lewd,” the court said, because it didn’t undermine her morals.

“The statute under which Dr. Co was convicted does not prohibit him from having sexual thoughts, being sexually attracted to, or wanting a sexual relationship with (the woman),” the court wrote. “Such a prohibition would quite obviously be constitutionally unsound. Contrary to dystopian movie plots, the state cannot regulate the sexual thoughts of all persons working at KDOC facilities.”

The Shawnee County District Attorney’s Office charged Co under a state law intended to require prison time for Kansas Department of Corrections employees who engage in lewd fondling or touching of inmates. The appeals court ruling said the purpose of the law is clear: To ensure people in positions of power don’t sexually victimize inmates.

However, relying on Kansas Supreme Court precedent, the appeals court said the law doesn’t prohibit an employee from touching an inmate even if he has sexual intent or desire. The district attorney’s office could have charged Co with a lesser crime that doesn’t require evidence of “lewd” touching, the ruling said.

Co denied the numerous allegations made by women under his supervision at the state-run women’s prison. He oversaw a dental lab where prisoners make the dentures distributed through social welfare programs and worn by others who are incarcerated by the state. The program is designed to help inmates find work after prison, although officials couldn’t provide a single example of an inmate finding employment in a related field after her release.

Co’s students made verbal and written reports of his alleged behavior, and a federal audit supported their complaints, but corrections officials refused to take action until another employee complained about Co’s unwanted advances.

Inmates accused him of touching their breasts and genitals, trying to kiss them, pressing his genitals against them, giving intimate hugs, making inappropriate comments about their looks, gifting them jewelry and drugs, obscuring camera views, and threatening to make them pay for telling on him.

One woman testified that Co on several occasions compelled her to reach into his pants, where he had removed his pockets, and rub his penis until he ejaculated.

Prospective jurors who identified as survivors of sexual violence were excused from jury duty by the trial judge. Prosecutors didn’t provide expert testimony about the impact of compounded trauma, which could have explained why some of Co’s students initially declined to talk about their alleged abuse. Video files that could have incriminated Co were deleted before the investigation began.

In the interview inside the prison, one of the women said the experience served as a prime example of how the correctional system dehumanizes inmates. She felt like her identity had been stripped away.

“It’s really frustrating because unless you have a really strong drive and passion to succeed and to change your life, you’re not going to make it, right?” she said. “You’re going to get out of here and you’re going to re-offend.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Sherman Smith
Sherman Smith

Sherman Smith is the editor in chief of Kansas Reflector. He writes about things that powerful people don't want you to know. A two-time Kansas Press Association journalist of the year, his award-winning reporting includes stories about education, technology, foster care, voting, COVID-19, sex abuse, and access to reproductive health care. Before founding Kansas Reflector in 2020, he spent 16 years at the Topeka Capital-Journal. He graduated from Emporia State University in 2004, back when the school still valued English and journalism. He was raised in the country at the end of a dead end road in Lyon County.