A fifth-grade teacher from Leopold Elementary School was released from facing an initial charge that he repeatedly sexually assaulted a student at the school five years ago but the Dane County District Attorney’s Office still expects to file formal charges against him, an official with the DA’s office is saying.

Assistant District Attorney Matt Moeser said he thought the DA’s office was close to completing a criminal complaint and proceeding with charges against Terry D. Fay, 50, of Madison, but “it’s up in the air when the work will be completed.”

Fay was at the Dane County Courthouse Monday morning for a hearing but left after he learned the District Attorney’s office missed its deadline to file the criminal complaint, according to his attorney, Jordan Loeb.

Loeb said he doesn’t believe the DA’s office has any evidence to prove what he called “outrageous allegations” made against Fay by a former student of the school. “There doesn’t seem to be any evidence to back up” the student’s story, he said.

In a statement, Moeser said any reports that “there was no evidence” to back up the charges were incorrect. Madison police’s Special Victims Unit is continuing to investigate the case and the DA’s office updated Loeb and Fay on the status of the case last week and informed them no criminal complaint would be filed today, according to Moeser.  

Fay was arrested on Oct. 13 after he turned himself in to Madison detectives and released from jail on Oct. 17 after he posted a signature bond. That followed an investigation that began in September after police received information from a teenager who now lives in another state, according to Madison police spokesman Joel DeSpain.

The teen told an adult that the assaults happened five years ago when he was 10 years old and Fay “was one of the child’s teachers when the child was attending Leopold Elementary School,” DeSpain said.

The school district placed Fay on paid leave after his arrest and Superintendent Jennifer Cheatham sent a message to parents saying the school district was cooperating with investigation. 

Cheatham said in her statement that the news of the sexual assault charge against Fay was difficult for everyone to grasp and “these allegation, if proven, violate the very essence of what it means to be an educator. Right now our focus is on two things: supporting our families and understanding every face we can about this case.” 

Loeb believed the Madison School District was too harsh in its treatment of Fay’s arrest. “The district had every reason to be suspicious of these allegations” made against Fay, Loeb said.

Loeb said he knows few details about the case other than that the teen wasn’t one of Fay’s students when the sexual assaults allegedly occurred and that police are saying that the teen is claiming that sexually assaults allegedly occurred during recess in his classroom.

That was extremely unlikely, Loeb said, because the classroom was not isolated and had constant traffic from teachers and others, even during recess.  “We don’t know what motivated (the former student) to make these allegations,” Loeb said.

Loeb said he was planning to contact Madison Teachers Incorporated to find out when Fay could return to his teaching position. The school district plans to keep Fay on paid leave because the investigation is still open, according to district spokeswoman Rachel Strauch-Nelson.

“Our job is not to speculate on the judicial process, but to follow the case and take appropriate next steps. Our focus now is on continuing to support our Leopold community,” the district said in a statement. 

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