Formal Charges Not Yet Filed in Foreign Exchange Student Sex Assault Case

A former exchange student who was arrested as part of the alleged sexual assault of a teen girl with her late husband faced a judge once again Friday.

Marta San Jose, who is accused of lewd and lascivious behavior with a child, appeared in a Miami-Dade courtroom Friday. While San Jose remains under house arrest, prosecutors have not yet filed formal charges.

"And, hoping that we can convince them that she is the victim which she is and for charges not to be filed," said Jorge Viera, San Jose's defense attorney.

If prosecutors wait too long to file formal charges, then San Jose's attorney can petition the court for her release.

Police arrested San Jose and her husband, Dale Leary, in June after the two allegedly assaulted a then 14-year-old girl who had come to the United States from Spain in 2014.

San Jose herself had come to the United States as an exchange student two years before and married Leary – who hosted San Jose and other teens in a foreign exchange program with his wife before divorcing her – shortly before the alleged attacks.

Leary and his ex-wife, Claudia, were found in a car located behind the Cutler Bay home in July trying to poison themselves with carbon monoxide, police said. Dale Leary died while Claudia was hospitalized and later recovered.

On Friday, San Jose's attorney successfully argued to modify her house arrest so that she may go outside.

"She's going to be able to see the sun, go outside maybe sit under a tree, read a book, go to Denny's," Viera said.

But San Jose's mother, who's here from Spain, must be with her during any outing. Prosecutors are currently waiting for an psychological evaluation and progress report from psychiatrists.

"She has a lot of pressure and alt of stress but she's holding up," her attorney said.

San Jose is scheduled to return to court in October for her arraignment-- but that's if prosecutors follow through on criminal charges.

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