Published: September 12, 2013
An El Paso County probation officer accused of coercing sex from a female client would avoid jail time under a plea bargain proposed in court Thursday.
Prosecutors agreed to dismiss rape charges against Julian Feliciano Cortez, 42, in exchange for his guilty plea to first-degree official misconduct - a misdemeanor acknowledging Cortez received a "benefit" in his official dealings with the accuser.
Even if the "benefit" involved sex, Cortez is not required to register as a sex offender.
In return for the guilty plea, jail time is off the table for Cortez, who would face at least one year of unsupervised probation if the deal is approved.
Calling the proposal a "significant departure" from the original rape charges, which carried the potential of a life sentence in prison, Senior District Judge Paul McLimans ordered a pre-sentencing report and said he will decide Oct. 28 whether accept Cortez's guilty plea.
Cortez is the second El Paso County probation officer to offer a guilty plea this year in a case alleging sexual abuse of a client.
The decision to dismiss rape charges against him took shape amid uncertainty the accuser would show for trial set for later this month, said Jim Yontz, a Pueblo prosecutor appointed to the case after the 4th Judicial District Attorney's Office recused itself from prosecuting the case.
"We've had little or no conversations with the victim at all," said Yontz, who said he had made repeated attempts to reach the woman at her home without success.
The accuser, whose name is being withheld, had also recently been charged with providing false information to a police officer, an allegation Yontz said would "seriously affect her credibility."
Despite her avowed lack of cooperation, the woman showed up at the courthouse Thursday and sat in the hall while the plea deal was heard by McLimans.
Crying in an elevator after the hearing was over, she said she felt "relieved" the matter was nearly settled, but expressed anger that Cortez will be spared jail time. "It sucks," she said, before declining further comment.
Cortez, an 11-year veteran of the probation office, left his job in May 2012 after authorities say the woman came forward and reported she was raped years earlier, in 2008. She provided at least one used condom as evidence.
Under Colorado law, sex between a probation officer and a client doesn't automatically qualify as rape, as it would for a jail guard who has sex with an inmate or a psychiatrist who has sex with a patient.
To establish a rape occurred, prosecutors would have had to overcome credibility hurdles in proving the sex wasn't consensual, Yontz said.
Cortez's attorney, Ed Farry of Colorado Springs, said he would have argued at trial that the woman lodged her allegations to avoid going to prison on a probation violation.
He pointed to evidence that the used condoms were kept in her purse, and asked: "Who does that?"
The deal would allow Cortez to plead guilty without "laying a factual basis" - legal jargon meaning he wouldn't have to admit what "benefit" he received.
The guilty plea by Cortez comes eight months after fellow El Paso County probation officer Guy Martin Cruz pleaded guilty to illegal sexual contact, a misdemeanor, and evidence tampering, a felony, on similar allegations of sexually abusing a client.
The victim in that case, a recovering methamphetamine addict, alleged she was coerced by Cruz, 44, into having sex in 2011 in exchange for his keeping quiet about her drug use while on probation - a violation that could have led to a 14-year prison sentence.
In July, she told CBS 4 in Denver she placed a hidden camera in her bedroom during one of the encounters because she feared no one would believe her - resulting in footage of Cruz lying naked in her bed.
Cruz, who claimed the sex was consensual, was placed on five years' intensive probation as a result of a plea bargain with prosecutors.
Allegations in that case led to an out-of-court civil settlement in June between the woman and Cruz, court records show.
The woman's attorney in the civil matter, Richard Bednarski of Colorado Springs, said he was barred from disclosing the monetary award. Bednarski said cases pitting a probation officer against a client raise difficulties at trial.
"Who's a jury going to believe?" he asked.