NEWPORT — A former Claremont doctor has been been sentenced up to a year in county jail after pleading guilty to sexually assaulting a female patient during an office visit two years ago.

Under a plea bargain with Sullivan County prosecutors, Thomas Marks, 72, a former orthopedic specialist at Valley Regional Hospital, pleaded guilty on Dec. 23 to a misdemeanor count of sexual assault and was sentenced up to 12 months in the Grafton County House of Corrections, according to court records. Marks also pleaded guilty to a felony count of first-degree assault, but that sentence — 7.5 years to 15 years in state prison — is fully suspended.

Marks, who agreed to no longer practice medicine after the charges were filed, had been confined to his home in Newbury, N.H., while out on bail. He ultimately could serve less than 12 months in jail, based on allowances for good behavior.

Marks was arrested and charged in January, 2023, after a 53-year-old female patient reported to police that Marks had sexually assaulted her during an examination at his medical office on Elm Street.

Before he was released on bail, Marks was detained on pre-trial confinement for 14 days in Grafton County jail, for which he will receive credit toward his jail sentence.

The plea bargain, which included the state dropping three other counts of sexual assault, was reached shortly after Sullivan County Superior Court Judge James Kennedy ruled that Marks’ defense attorney could introduce a “consent defense” at the defendant’s trial and argue that any encounters with the patient had been consensual.

But in a four-page victim impact statement read in court at the sentencing hearing, the patient said any claim that what happened to her in Marks’ office was consensual is false.

“I am here to tell everyone that there certainly was no consent when I was cornered in a very small examination room, frozen with fear and utter disbelief, mortified knowing that nurses and other waiting patients were just mere feet away right outside the closed door,” she said.

The patient stated she suffers from “nightmares,” is now in therapy and takes medication in connection with the ordeal. She said her own daughters fear visits to the doctor after what happened to her.

“This system is not designed to protect the assaulted,” the patient said.

The Valley News generally does not identify victims of sex crimes.

Defense attorney Eric Wilson, of Nashua, declined this week to discuss the specifics of the allegations but told the Valley News that “Judge Kennedy’s rulings had an impact” on the resolution of the case.

Sullivan County State Attorney Christine Hilliard declined to comment this week, citing another case concerning a health care provider and the consent defense that is pending on interlocutory appeal before the state Supreme Court.

Meanwhile, a victims’ advocate expressed dismay at the judge’s ruling.

“The New Hampshire Legislature enacted specific safeguards in our state’s sexual assault laws to ensure that people in positions of power, such as doctors, mental health providers, and teachers, do not harm the people in their care,” said Amanda Grady Sexton, director of public affairs with the New Hampshire Coalition Against Domestic and Sexual Violence.

“New Hampshire law specially outlines the circumstances when someone cannot freely give their consent, and that includes when a patient is receiving medical treatment from their provider. Anyone should be able to seek health care without fear that a doctor will violate their most basic right to safety. The Legislature was clear that when a doctor abuses their power it is not only an egregious breach of trust — it’s also a crime,” she said.

Questions of consent

Marks was formerly affiliated with an orthopedic practice in Windham, N.H., and joined Valley Regional in 2022. He came to attention of investigators when the patient reported to Claremont police on Dec. 14, 2022, that she “froze” when a medical visit to Marks’ office on Elm Street six days earlier turned sexual.

Investigators subsequently outfitted the woman with a hidden recording device when she returned for a follow-up appointment a few weeks later in January, 2023, with Marks. When she managed to get a moment alone to call police on her phone to inform them that the appointment was again turning sexual in nature, investigators entered the exam room and found Marks in a compromising position, according to a police affidavit in the case.

In a subsequent interview with police, Marks acknowledged there had been inappropriate conduct but claimed his encounters with the patient were consensual and denied some of the specifics of the woman’s allegations.

Last July, following a breakdown in negotiations over a plea deal, Mark’s attorney notified the court that he might rely upon a “defense of consent” at a jury trial to refute the accusations.

Wilson, the defense attorney, argued in a 24-page legal brief to the court, that a close reading of the statute’s text and analysis of the act’s legislative history showed that New Hampshire law does not criminalize “all sexual contact between a medical provider and patient regardless of the circumstances,” noting that “the legislature would have stated so if that was the intent. It did not.”

The statute, 632-A-2, spells out those specific circumstances under which a consent defense is precluded to a defendant charged with sexual assault.

When the Legislature wrote the law, lawmakers specifically enumerated the offenses — such as when the victim is less than 13 years old — for which a consent defense is not allowed, Wilson noted, and a medical professional-patient relationship was not among them.

In an interview, Wilson said that if the state Supreme Court were to affirm the Superior Court decision, “it could really challenge the ability to prosecute medical professionals” for criminal sexual misconduct.

Hilliard, in asking the court to strike the defense’s ability to rely upon a defense consent claim, disputed that interpretation of the statue, arguing “the plain language” of the statute “precludes the availability of a consent defense” in regard to medical professionals and patients and to argue otherwise is contrary to both the text and spirit of law.

Kennedy sided with Marks’ lawyer, writing in his ruling that “the defendant’s view that where the Legislature intended to preclude the sent defense, it knew how  to do so, and did so expressly.”

Contact John Lippman at  jlippman@vnews.com.