Shawnee County’s District Attorney, Mike Kagay, will ask the Kansas Supreme Court to review the Kansas Appeals Court’s controversial decision to overturn the conviction of Thomas Co, a dental instructor at the Topeka Correctional Facility, accused of molesting a female inmate.

In December 2021, the court overturned Co’s January 2020 conviction, arguing that his repeated touching of her legs and thighs was inappropriate and unwarranted but did not meet the legal standard for “lewd” behavior.

According to prosecutors, between 2011 and 2018, Co molested at least nine inmates at the facility, but he was only found guilty on one count.

These women repeatedly filed complaints against Co, but their complaints were ignored and at times even led to retaliation or warnings.

Another inmate said that Co forced her hand into his pocket, whose bottom he had cut out, and made her rub his penis. In all instances, there was no evidence to support the claims of these inmates. There is footage taken from the dental lab and which was reviewed by a Department of Corrections investigator. After reviewing the video, the investigator disposed of it and it has not been seen since.

In 2017, the Kansas Department of Correction declined to remove Co from his post. Further complaints, including one by a coworker, eventually led to an investigation and his departure in 2018.

Role of female inmates

Co worked as a supervisor at a dental lab at the correctional facility. The female inmates were employed there to make dental products.

Co did not admit that he touched her on her leg and thighs, but his legal strategy was based on challenging the legal basis of the charge. Without meeting the legal definition of lewd behavior, it was impossible to convict Co.

According to Judges Karen Arnold-Burger, G. Gordon Atcheson and Jacy Hurst, touching is not necessarily lewd even if it is done with sexual intent.

The judges noted that prosecutors could have chosen to charge Co with a different offense that did not require them to meet the legal standard for “lewd touching or fondling”. The charged statute required the State to show that Co’s conduct met this legal standard, in the context of the situation, without considering his mental state of intentions.

Convictions overturned

Kagay told that if the Kansas Supreme Court does not overrule the appeals court, then he will ask the state legislature to make changes to the relevant law.

In February 2019, the Shawnee County District Court charged Co with eight counts of unlawful sexual relations with an inmate. Two of those charges were later dismissed. Co was tried on six counts in January 2020 where he was found guilty of just one of those counts.

The court ordered Co to register as a sex offender for 25 years. Co has been free under an appeal bond, while he appealed his conviction. When the appeals court overturned his conviction, it argued that it had not been “supported by sufficient evidence.”