NEWPORT — An Upper Valley orthopedic surgeon who is charged with sex assault against a patient and who has been held in jail on preventive detention since his arrest 13 days ago was ordered released into home confinement by a state court judge on Monday.
Dr. Thomas Marks, formerly affiliated with Valley Regional Hospital in Claremont until he was placed on leave after his arrest on Jan. 24, has been charged with multiple counts of sexual assault of a 53-year-old female patient in December at his Elm Street office in Claremont. The patient alleged that Marks fondled and pressured her into oral sex during the office visit and was about to attempt it again during another visit in January before police entered the room and interrupted the meeting.
Sullivan Superior Court Judge Martin Honigberg, acknowledging at the time information was limited, had ordered Marks held in preventive detention at his Jan. 25 arraignment after hearing the state prosecutor disclose that in the less than 24 hours since Claremont police announced Marks’ arrest and charges three other people contacted law enforcement in other New Hampshire jurisdictions about the doctor’s alleged behavior.
Under questioning by investigators, Marks acknowledged that he flirted and engaged in graphic sexual talk with the patient, describing it as a “heat of the moment type of thing” but maintained to police that the exchange was consensual and mutual, according the police affidavit.
On Monday, although the prosecutor did not present in court other incidents allegedly committed by Marks, noting they continue to be investigated, she stated that the nature of charges against Marks are nonetheless sufficiently disturbing that they warranted his continued pre-trial detention in jail.
“The facts remain largely the same,” Christine Hillard, Sullivan County deputy attorney, told the court, explaining that sex assault can take numerous forms, especially when it involves power dynamics between people.
“Instead of receiving care from her doctor (the patient) was sexually assaulted by her doctor. That is what happened here. The defendant’s arguments boil down to ‘it wasn’t forceful.’ I would suggest that with a physician — and this is why it’s a statutory crime — there is a level of power and control that comes from being someone’s physician … (the patient is) in a vulnerable position. And that is enough. You don’t need to hold somebody up against the wall in order for that to be a sexual assault,” Hilliard.
But Eric Wilson, Marks’ defense attorney, said that his client does not present a risk to the community and would agree to being confined at his home in Newbury, N.H., with conditions imposed that restrict his freedom and mobility, including surrendering his passport and driver’s license, signing a waiver of extradition, no contact with the alleged victim, prohibition on alcohol and possessing a firearm — all typical conditions for an order of home confinement.
Wilson also pointed out that Marks volunteered to hand over his medical license to the state Board of Medicine and has been suspended by his employer, both actions that would deny him contact with patients.
Moreover, Wilson challenged the state’s claim that Marks presented a danger to the community because the state allowed five weeks to pass between when the allegations were first reported to authorities by the patient and the January sting operation in which they allowed the patient — this time equipped with a recording device to capture the conversation — to return to Marks’ office for another visit.
Wilson suggested that if the state was so fearful that Marks represented a public danger there were other avenues available to it to obtain a recorded “admission,” such as a telephone call, that would not have put the patient in Marks’ presence.
“There were other alternatives … than the five weeks during which they now claim he was such a risk,” Wilson said, arguing that it adds up to prosecutors falling “far short of clear evidence that (Marks) is danger to community if released on bail.”
Honigberg in the end sided with the defense’s argument.
“Releasing Dr. Marks at this time, without any supervision would not be appropriate. But I do believe that the series of conditions proposed by defense should be sufficient to mitigate whatever risks there might be,” Judge Honigberg said.
And if Marks violates those conditions, Honigberg noted, “the state can always come back in.”
Honigberg’s last word was for Marks, dressed in an orange prison jumpsuit and sitting at the defense table next to his attorney.
“If you have any question, just reach out to your lawyer, OK?” Honigberg addressed the defendant.
“Yes, sir,” Marks replied.
John Lippman can be reached at jlippman@vnews.com.