State v. Allore

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
Case No. 2024-0396
Citation: State v. Allore, 2025 N.H. 33

THE STATE OF NEW HAMPSHIRE

v.

ROBERT F. ALLORE

Argued: April 15, 2025
Opinion Issued: July 30, 2025

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, assistant attorney general, on the brief, and Anthony
J. Galdieri orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

COUNTWAY, J.

¶1 In this interlocutory appeal, the defendant, Robert F. Allore, seeks
review of Superior Court orders (St. Hilaire, J., and Kennedy, J.) regarding
whether an alleged victim’s consent constitutes a defense under RSA 632-A:2,
I(g)(1) (sexual assault by medical provider) and I(i) (sexual assault by surprise).
See Sup. Ct. R. 8; RSA 632-A:2, I(g)(1), I(i) (2016) (establishing two variants of
aggravated felonious sexual assault (AFSA)); RSA 632-A:4, I(a) (2016). The
interlocutory appeal statement approved by the trial court sets forth three
questions related to whether consent is a defense under RSA 632-A:2, I(g)(1)
and I(i) and whether RSA 632-A:2, I(g)(1) is overbroad and vague in violation of
the New Hampshire and United States Constitutions. We answer all three
questions in the negative, and remand to the trial court for further proceedings
consistent with this opinion.

¶2 We accept the statement of facts as presented in the interlocutory
appeal statement and rely upon the record for additional facts as necessary.
See In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363, 364 (2022).
The charges at issue in this case arose out of events alleged to have occurred
while the defendant, a visiting nurse licensed in the State of New Hampshire,
was providing care to the alleged victim. The defendant was charged with two
counts of AFSA, under RSA 632-A:2, I(g), and four counts of misdemeanor
sexual assault (MSA), under RSA 632-A:4, I(a). The MSA charges at issue in
this appeal incorporated the circumstances identified in RSA 632-A:2, I(g)(1)
and I(i). See RSA 632-A:4, I(a) (a person is guilty of a class A misdemeanor
when that person “subjects another person who is 13 years of age or older to
sexual contact under any of the circumstances named in RSA 632-A:2”). It is
undisputed that the alleged victim was over the age of 13 at the time of the
alleged assaults.

¶3 After the charges were filed, the defendant notified the court that he
intended to assert a consent defense under RSA 626:6, I (2016) (setting forth
when consent is a defense to a charged crime). The State moved to preclude
consent as a defense at trial. Substantial pre-trial litigation ensued resulting
in the trial court directing the parties to prepare an interlocutory appeal
statement. The defendant did so, and the trial court approved its transfer to
this court.

¶4 The questions presented in this interlocutory appeal are: (1) as a
matter of statutory interpretation is consent a defense under RSA 632-A:2,
I(g)(1); (2) is RSA 632-A:2, I(g)(1) unconstitutionally vague and overbroad, both
on its face and as applied, in violation of Part I, Articles 15 and 22 of the New
Hampshire Constitution and the First, Fifth, and Fourteenth Amendments to
the United States Constitution; and (3) is consent an available defense under
RSA 632-A:2, I(i). We answer all three questions in the negative.

¶5 Resolving the questions presented requires us to engage in statutory
interpretation. The interpretation of a statute presents a question of law,
which we review de novo. State v. Parr, 175 N.H. 52, 55 (2022). In matters of
statutory interpretation, the intent of the legislature is expressed in the words
of the statute considered as a whole. Id. We first look to the language of the
statute itself, and, if possible, construe that language according to its plain and

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ordinary meaning. Id. Further, we interpret legislative intent from the statute
as written and will not consider what the legislature might have said or add
language the legislature did not see fit to include. Id. Finally, we interpret
statutes in the context of the overall statutory scheme and not in isolation. Id.

¶6 We first address the question of whether consent is a defense under
RSA 632-A:2, I(g)(1). RSA 632-A:2, I(g) provides that a person is guilty of AFSA
if such person engages in sexual penetration with another person:

(g) When the actor provides therapy, medical treatment or examination of
the victim and in the course of that therapeutic or treating relationship
or within one year of termination of that therapeutic or treating
relationship:

(1) Acts in a manner or for purposes which are not professionally
recognized as ethical or acceptable; or
(2) Uses this position as such provider to coerce the victim to submit.

RSA 632-A:2, I(g); see also RSA 632-A:4, I(a). Accordingly, the elements of RSA
632-A:2, I(g)(1) that the State must prove beyond a reasonable doubt at trial
are that: (1) the defendant provided medical treatment for the alleged victim; (2)
the defendant sexually penetrated the alleged victim “in the course of” or
“within one year of termination of” the treating relationship; and (3) such
behavior was “not professionally recognized as ethical or acceptable.” RSA
632-A:2, I(g)(1).1 RSA 626:6, I, provides that:

I. The consent of the victim to conduct constituting an offense is a
defense if such consent negatives an element of the offense or precludes
the harm sought to be prevented by the law defining the offense.

RSA 626:6, I.

¶7 The defendant argues under both prongs of RSA 626:6, I, that the
consent of an adult victim negates the “professionally recognized” element of
RSA 632-A:2, I(g)(1) and that it precludes the harm sought to be prevented by
RSA 632-A:2, I(g)(1). We begin by addressing the defendant’s arguments that
consent negates the “professionally recognized” element.

¶8 The defendant asserts that because RSA 632-A:2, I(g) does not define
what is professionally recognized as “ethical or acceptable” behavior, then
which professional standard applies and whether consent negates the

1 For the misdemeanor variant, the State must prove that the defendant subjected the alleged

victim to sexual contact and that she was 13 years of age or older. RSA 632-A:4, I(a). RSA 632-
A:1 differentiates between “sexual contact” and “sexual penetration.” RSA 632-A-1, IV, V (2016 &
Supp. 2024).

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“professionally recognized” element are questions of fact for the factfinder to
decide. The defendant reasons, therefore, that he should be entitled “to elicit
evidence [at trial] that consent, in whole or in part, defines the boundary
between acceptable and unacceptable sexual relationships with patients.” The
State counters that, as a matter of law, the Nurse Practice Act (NPA), RSA
chapter 326-B, is the governing professional standard defining “ethical or
acceptable” behavior for nurses in New Hampshire, and that the NPA prohibits
even consensual sexual conduct between nurses and patients. The State
reasons, therefore, that consent does not negate an element of RSA 632-A:2,
I(g)(1) and accordingly cannot be a defense to a charge that alleges or
incorporates the elements of RSA 632-A:2, I(g)(1). We agree with the State.

¶9 RSA chapter 326-B regulates the nursing profession in the State of
New Hampshire. RSA 326-B:1 (2017) (“[T]he practice of nursing shall be
regulated through the New Hampshire board of nursing, and such board shall
have the power to enforce the provisions of this chapter.”). Therefore, RSA
chapter 326-B provides the relevant professional standard for what is
considered ethical or acceptable behavior for licensed nurses in the state and is
the applicable professional standard for the purposes of RSA 632-A:2, I(g)(1).
Given that the defendant was a licensed nurse in the State of New Hampshire
at the time the events giving rise to these charges are alleged to have occurred,
his conduct is governed by RSA chapter 326-B.

¶10 The defendant asserts that the NPA “contains no express exclusion
for consensual sexual relations” because, although it prohibits sexual conduct
between nurses and clients, it does not require the board of nursing to
discipline a licensee for such conduct. We disagree with this reading of the
statute. The NPA expressly states that “engaging in sexual conduct with a
client, touching a client in a sexual manner, requesting or offering sexual
favors or language or behaviors suggestive of the same” is misconduct for
which “[t]he board [of nursing] may discipline a licensee.” RSA 326-B:37, II(m)
(2017). The plain language of RSA 326-B:37, II(m) makes sexual conduct with
a client — whether it is consensual or non-consensual — professional
misconduct. What is left to the board’s discretion is whether to discipline a
licensee for sexual conduct with a client — not whether such conduct is
professionally recognized as misconduct. Accordingly, consent does not negate
“an element of” RSA 632-A:2, I(g)(1). See RSA 626:6, I.

¶11 Nor are we persuaded by the defendant’s argument that the NPA
should not apply because it “expresses standards articulated by the
government, not by the nursing profession” and because it was enacted two
years after the legislature enacted the current form of RSA 632-A:2, I(g)(1).
“Professionally” is defined as “of, relating to, or characteristic of a profession.”
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/professionally (last visited July 29, 2025). Given that
the NPA regulates the nursing profession in New Hampshire, it is clearly

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related to the nursing profession in the state and can provide the standard for
what is professionally recognized as misconduct by the profession. Nor is the
timing of the NPA’s enactment dispositive. RSA 632-A:2, I(g)(1) was written
broadly to apply to multiple professions and to allow for professional standards
regarding what is considered ethical or acceptable to evolve over time.2
Accordingly, professional standards, such as the NPA, that were enacted after
the current version of RSA 632-A:2, I(g)(1) are a rational and predictable
measure to evaluate whether conduct is ethical or acceptable.

¶12 The defendant additionally argues that, as a matter of statutory
interpretation, if the patient’s consent is legally irrelevant under RSA 632-A:2,
I(g)(1), there would be no reason to enact RSA 632-A:2 I(g)(2). We disagree.
RSA 632-A:2, I(g)(2) prohibits therapists and medical treatment providers from
using their “position as such [a] provider to coerce the victim to submit” to
sexual penetration during the course of, or within one year of the termination
of, the treating relationship. RSA 632-A:2, I(g)(2). This provision sweeps more
broadly than RSA 632-A:2, I(g)(1) to include treatment relationships that may
not have established ethical or professional standards or treatment
relationships that may have ethical or professional standards that do not
prohibit consensual sexual conduct between providers and patients.
Accordingly, RSA 632-A:2 I(g)(2) is not superfluous. See State v. Duran, 158
N.H. 146, 155 (2008) (“[A]n interpretation that renders statutory language
superfluous and irrelevant is not a proper interpretation.”).

¶13 We turn next to the defendant’s arguments that a victim’s consent
precludes the harm sought to be prevented by RSA 632-A:2, I(g)(1). The
defendant argues that the legislature did not intend to prevent sexual activity
between consenting adults. Rather, the defendant contends that RSA 632-A:2,
I(g)(1) was “aimed to criminalize acts of penetration or sexual contact that
purport to be treatment, unless the treatment is professionally recognized as
ethical or acceptable.” He further argues that had the legislature intended to
preclude consent as a defense to a charge arising under RSA 632-A:2, I(g)(1) it
would have done so explicitly, as it did elsewhere in RSA 632-A:2. Given our
conclusion that the NPA applies and, therefore, consensual sexual conduct
between a nurse and a patient is not professionally recognized as ethical or
acceptable, we need not address the defendant’s arguments that a victim’s
consent precludes the harm sought to be prevented by RSA 632-A:2, I(g)(1).
Nor need we address the defendant’s argument that RSA 632-A:2, I(g)(1) is
unconstitutionally vague. The defendant’s vagueness challenge is premised on

2 At oral argument, the defendant argued that the NPA should not apply because the legislature

could have expressly incorporated it into RSA 632-A:2, I(g)(1) and it failed to do so. We are
unpersuaded. Given that the plain language of RSA 632-A:2, I(g)(1) encompasses a wide range of
professions, including professions other than nursing and professions that may not yet be
regulated by a state statutory scheme, the legislature’s failure to specifically reference the NPA or
other specific professional standards is not dispositive.

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a reading of RSA 632-A:2, I(g)(1), rejected above, in which there is no settled
definition for what is “professionally recognized as ethical or acceptable.”3 RSA
632-A:2, I(g)(1).

¶14 Finally, we address whether consent is a defense under RSA 632-
A:2, I(i). RSA 632-A:2, I(i) provides that a person is guilty of AFSA:

When the actor through concealment or by the element of surprise is
able to cause sexual penetration with the victim before the victim has an
adequate chance to flee or resist.

RSA 632-A:2, I(i). A person is guilty of misdemeanor sexual assault under
those circumstances if the alleged victim is 13 years of age or older
and the person subjected the alleged victim to sexual contact. RSA 632-A:4, I
(a). Only the misdemeanor variant is at issue here. The defendant argues that
because, unlike elsewhere in RSA 632-A:2, I, the legislature has not explicitly
withdrawn consent as a defense to RSA 632-A:2, I(i), he may assert a consent
defense at trial and that the court must admit evidence of consent in defense of
the charge under RSA 632-A:2, I(i). The State counters that although the
defendant may be able to elicit evidence of the alleged victim’s consent in
advancing his theory of the case, “a legal defense of consent is not available
because if the defendant admitted the substance of the State’s allegations . . .
then he would necessarily concede that the victim did not consent.” We agree,
in part, with each party.

¶15 We have long distinguished between a criminal defendant’s theory
of defense and his theory of the case. See, e.g., State v. Brooks, 177 N.H. __, __
(2025), 2025 N.H. 12, ¶9. A theory of the case is simply the defendant’s
position on how the evidence should be evaluated and interpreted. Id. By
contrast, a theory of defense is akin to a civil plea of confession and avoidance,
by which the defendant admits the substance of the allegation but points to
facts that excuse, exonerate, or justify his actions such that he thereby escapes
liability. Id. In other words, to use consent as a theory of defense, the
defendant would have to present evidence showing a different legal significance
for the facts alleged against him. State v. Ramos, 149 N.H. 272, 274 (2003). In
contrast, to use consent as his theory of the case, the defendant need only
present evidence of a different factual scenario than that presented by the
State, and then argue how the facts and evidence should be evaluated or
interpreted by the jury. Id.

3 Although the defendant additionally argued before the trial court that RSA 632-A:2, I(g)(1) was

unconstitutionally overbroad and raised the question of overbreadth in the interlocutory appeal
statement, he did not advance any overbreadth arguments on appeal. Accordingly, we deem any
overbreadth argument waived. State v. Cooper, 168 N.H. 161, 171 (2015) (“[A]ny issues raised in
the defendant's notice of appeal, but not briefed, are deemed waived.”).

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 [¶16] Here, the defendant does not admit the substance of the allegation:
that he was “able to cause” sexual contact with the alleged victim “through
concealment or by the element of surprise . . . before the [alleged] victim ha[d]
an adequate chance to flee or resist.” RSA 632-A:2, I(i). Were he to do so, he
would necessarily admit that the alleged victim had not consented to the
charged act. In other words, had the alleged victim consented, the defendant
would have been “able to cause” the sexual contact through consent rather
than “through concealment or surprise.” RSA 632-A:2, I(i). Rather, the
defendant seeks to elicit evidence of the alleged victim’s “consent to the sexual
act charged under RSA 632-A:2, I(i).” Such evidence would present a
contrasting set of facts to those the State must prove in order to convict the
defendant under RSA 632-A:2, I(i). It would then be for the factfinder to
evaluate the credibility of the evidence and decide which version of the facts to
believe. See Ramos, 149 N.H. at 274.

¶17 We have previously stated that the credibility of evidence “is not a
‘defense’ to a criminal charge, as that term is employed” in RSA 626:6. State v.
Guaraldi, 124 N.H. 93, 97 (1983). That is because, if the factfinder determines
that there is credible evidence that the alleged victim consented to the charged
conduct, the State will not have proved beyond a reasonable doubt that a crime
has occurred under RSA 632-A:2, I(i). See Ramos, 149 N.H. at 273-74. In
other words, although lack of consent is not an element of RSA 632-A:2, I(i),
and, therefore, consent cannot be a legal defense to a charge arising under RSA
632-A:2, I(i), if the factfinder concludes that the alleged “penetration occurred
only through the defendant’s concealment or by surprise, it necessarily would
have to find the victim did not consent to such penetration.” Id. (endorsing
trial court reasoning to this effect). Accordingly, here, the defendant may not
use the alleged victim’s consent as a legal defense to the misdemeanor charge
incorporating the circumstances of RSA 632-A:2, I(i). He may, however, elicit
evidence of the alleged victim’s consent to the sexual act at issue in that charge
to support his theory of the case.4

¶18 In sum, we answer all three questions in the negative: consent is
not a defense to a charge arising under RSA 632-A:2, I(g)(1) or I(i) and RSA
632-A:2, I(g)(1) is not unconstitutionally vague. We remand for further
proceedings consistent with this opinion.
Remanded.

MACDONALD, C.J., and DONOVAN, J., concurred.

4 The practical import of this decision may be whether the defendant will be entitled to a jury

instruction on his theory of the case. In a sense, the defendant is correct that a decision on that
matter is premature because it is unknown what evidence will be admitted at trial. If the
defendant puts on evidence of the alleged victim’s consent as his theory of the case, whether he
will be entitled to a jury instruction on his theory of the case will be within the sound discretion of
the trial court. See State v. Ramos, 149 N.H. 272, 274 (2003).

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