State v. Allore: Professional Standards, Not Patient Consent, Control “Medical Provider” Sexual Assault; Consent Evidence Under “Surprise” Assault Goes Only to the Theory of the Case

Introduction

In State v. Allore, 2025 N.H. 33 (N.H. July 30, 2025), the New Hampshire Supreme Court resolved a set of recurring questions at the intersection of sexual assault statutes and professional regulation of healthcare providers. The defendant, a visiting nurse, faced charges under two provisions of RSA 632-A:2: subsection I(g)(1), colloquially “sexual assault by medical provider” (which turns on whether the conduct is “professionally recognized as ethical or acceptable”), and subsection I(i), “sexual assault by surprise” (which turns on concealment or surprise before the victim had an adequate opportunity to flee or resist). The issues were presented by interlocutory appeal from pretrial orders addressing the availability of a consent defense and the constitutionality of RSA 632-A:2, I(g)(1).

The Court held:

Consent is not a defense to charges brought under RSA 632-A:2, I(g)(1), because—at least for nurses—the governing professional standard (the Nurse Practice Act) deems any sexual conduct with a client to be professional misconduct regardless of consent.
Consent is not a “legal defense” to charges brought under RSA 632-A:2, I(i) (surprise), although a defendant may introduce evidence of consent as part of a “theory of the case” to argue the State has failed to prove concealment or surprise.
RSA 632-A:2, I(g)(1) is not unconstitutionally vague; the statute permissibly relies on professional standards to define what is “professionally recognized as ethical or acceptable.” (An overbreadth challenge was deemed waived.)

This commentary explains the decision’s logic, situates it within the broader statutory and case law framework, and assesses its practical and doctrinal significance for prosecutions and defenses involving sexual misconduct by medical providers.

Summary of the Opinion

The Court answered three certified questions in the negative:

Is consent a defense under RSA 632-A:2, I(g)(1)? No. Because the Nurse Practice Act (RSA 326-B) identifies “engaging in sexual conduct with a client” as professional misconduct, patient consent cannot negate the “professionally recognized as ethical or acceptable” element nor otherwise supply a defense under RSA 626:6, I.
Is RSA 632-A:2, I(g)(1) vague/overbroad under the New Hampshire and U.S. Constitutions? No as to vagueness; the statute’s reliance on professional standards provides a settled benchmark. Overbreadth was not argued on appeal and thus waived.
Is consent a defense under RSA 632-A:2, I(i)? No. Lack of consent is not an element of I(i), and the statutory mechanism—penetration/contact achieved “through concealment or by the element of surprise” before the victim could flee or resist—logically excludes consent as a legal defense. However, evidence of consent may be introduced to support a theory that the State has not proved concealment or surprise beyond a reasonable doubt.

The case is remanded for further proceedings consistent with these rulings.

Analysis

I. The Statutory Landscape

Two provisions of RSA 632-A:2 are central:

RSA 632-A:2, I(g)(1) (AFSA by medical provider): criminalizes sexual penetration (and, via RSA 632-A:4, I(a), misdemeanor sexual contact) by a provider “in the course of [or within one year of termination of]” the treating relationship when the actor “[a]cts in a manner or for purposes which are not professionally recognized as ethical or acceptable.”
RSA 632-A:2, I(i) (AFSA by surprise): criminalizes penetration (and, via RSA 632-A:4, I(a), misdemeanor sexual contact) when the actor, “through concealment or by the element of surprise,” is able to cause the act “before the victim has an adequate chance to flee or resist.”

The general consent statute, RSA 626:6, I, provides that consent is a defense if it either (a) negates an element of the offense, or (b) precludes the harm the statute seeks to prevent.

II. Consent and RSA 632-A:2, I(g)(1): Professional Standards Control

The defense argued that because “ethical or acceptable” is undefined, consent by an adult victim should help the factfinder decide what conduct the profession deems acceptable, thus negating an element. The Court rejected that framing. For nurses, the relevant, authoritative source of professional standards is the Nurse Practice Act (NPA), RSA chapter 326-B. Under RSA 326-B:37, II(m), “engaging in sexual conduct with a client” is professional misconduct. The provision’s “may discipline” language confers discretion about sanctions, not about whether the conduct violates professional ethics.

The Court drew several interlocking conclusions:

RSA 326-B governs the nursing profession in New Hampshire; it supplies the relevant benchmark for what is “professionally recognized as ethical or acceptable” for licensed nurses.
Because the NPA deems sexual conduct with a client professional misconduct “whether it is consensual or non-consensual,” patient consent cannot negate the “professionally recognized” element required by RSA 632-A:2, I(g)(1).
“Professionally” means “of or relating to a profession,” and a statute regulating a profession can define its ethical standards. It is not disqualifying that the standard appears in a government-enacted statute rather than a private code of ethics; the statute is intrinsically connected to the profession it regulates.
The fact that the NPA’s provision post-dates the current form of I(g)(1) was immaterial. The legislature wrote I(g)(1) to be broad and dynamic—applicable across professions and receptive to evolving professional standards.

Having held that patient consent does not negate the “professionally recognized” element, the Court found it unnecessary to reach the alternative RSA 626:6, I argument that consent “precludes the harm” targeted by I(g)(1).

III. Why I(g)(2) Is Not Superfluous

The defendant reasoned that if consent is irrelevant under I(g)(1), I(g)(2) (which prohibits using provider status to coerce submission) would be unnecessary. The Court disagreed. Subsection I(g)(2) “sweeps more broadly” than I(g)(1) because it covers:

Professions without settled or codified ethical standards; and
Professions with standards that do not absolutely prohibit consensual sexual relationships with current or recently terminated patients.

In such settings, coercion-by-position remains independently criminalized, ensuring that I(g)(2) performs distinct work within the statutory scheme.

IV. Vagueness (and Overbreadth)

The vagueness challenge fell away once the Court identified the NPA as the operative yardstick: there is a “settled definition” of what is professionally unacceptable for nurses, removing indeterminacy from the I(g)(1) analysis. The overbreadth challenge was waived because it was neither briefed nor argued on appeal.

V. Consent and RSA 632-A:2, I(i): Not a Legal Defense, But Evidence May Support the Theory of the Case

The “surprise” provision (I(i)) does not list “lack of consent” as an element. Instead, it turns on whether the actor achieved the sexual act “through concealment or by the element of surprise” before the victim had an adequate chance to flee or resist. The Court emphasized:

If a defendant “admitted the substance” of an I(i) allegation, he would necessarily be admitting the act occurred by concealment or surprise, which is incompatible with consent. Thus, consent cannot function as a legal defense of confession-and-avoidance under RSA 626:6.
However, a defendant may introduce evidence of consent to argue that the State’s account is not credible and that the act did not occur via concealment or surprise. This is a “theory of the case,” not a “theory of defense.” If the factfinder credits the consent evidence, the State will have failed to prove the concealment/surprise element beyond a reasonable doubt, and the charge fails on the merits.

Put simply: under I(i), “consent” is not a legally cognizable defense, but consent evidence remains relevant to defeat the State’s proof of concealment/surprise.

VI. Precedents and Authorities Cited and Their Role

State v. Parr, 175 N.H. 52 (2022): Provides the canonical principles of statutory interpretation—plain meaning, textualism, and reading statutes within the broader scheme. The Court’s reliance on the NPA flows directly from applying these interpretive rules to the phrase “professionally recognized as ethical or acceptable.”
State v. Duran, 158 N.H. 146 (2008): Avoids interpretations that render statutory language superfluous. This supports the Court’s insistence that I(g)(2) remains meaningful even if consent is irrelevant under I(g)(1).
State v. Ramos, 149 N.H. 272 (2003): Clarifies the evidentiary and logical relationship between consent and “surprise” offenses—if an act truly occurs by concealment or surprise, it is inconsistent with consent; conversely, credible consent evidence undermines the State’s proof of that element. Ramos undergirds the Allore Court’s treatment of consent as a theory-of-the-case, not a legal defense, under I(i).
State v. Guaraldi, 124 N.H. 93 (1983): Explains that credibility-based arguments are not “defenses” in the RSA 626:6 sense; rather, they contend the State failed to prove an element. This reinforces the Court’s distinction between “legal defenses” and a defendant’s factual theory of the case.
State v. Brooks, 2025 N.H. 12 (2025): Reaffirms the distinction between a theory of defense (confession-and-avoidance) and a theory of the case (disputing the State’s factual narrative).
In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363 (2022): Confirms the Court’s practice on interlocutory appeals of accepting the statement of facts and relying on the record as needed.
State v. Cooper, 168 N.H. 161 (2015): Waiver doctrine—issues raised but not briefed are deemed waived—applied to dispose of the overbreadth claim.
RSA 326-B:37, II(m) (Nurse Practice Act): The decisional fulcrum. By designating “engaging in sexual conduct with a client” as professional misconduct, it supplies the “professionally recognized” benchmark for nurses. The “may discipline” phrasing pertains to sanctioning discretion, not to whether the conduct is ethically acceptable.
Merriam-Webster’s definition of “professionally”: Used to confirm that legislative standards regulating a profession qualify as “professional” benchmarks for I(g)(1).

Impact and Implications

A. For Healthcare and Allied Professionals

Per se ethical prohibition (nursing): For licensed nurses, the NPA’s categorical prohibition on sexual conduct with clients means patient consent cannot insulate such conduct from criminal liability under I(g)(1). The State must still prove sexual penetration/contact and the temporal nexus (“in the course of” or within one year of termination), but consent is legally irrelevant to the ethics element.
Cross-profession ripple effect: Allore’s reasoning extends beyond nursing. For other licensed professions (physicians, therapists, chiropractors, dentists, etc.), if state law or authoritative professional standards in New Hampshire define sexual conduct with current patients/clients as unethical, that benchmark can satisfy I(g)(1)’s “professionally recognized” element irrespective of patient consent.
Evolving standards: The Court explicitly accepts that I(g)(1) was drafted to accommodate evolving professional norms. Newly enacted or amended professional standards may thus shape the criminal law’s content prospectively, as applied to conduct occurring while those standards are in force.

B. For Prosecutors

Charging decisions: Where a provider is covered by a clear professional rule barring sexual conduct with clients, I(g)(1) is a strong charging path. The key proof points become (i) the existence and timing of the treating relationship, (ii) the applicable professional standard, and (iii) the sexual act (penetration/contact).
Alternate theories: In professions lacking a categorical bar—or where the bar does not reach the particular timing or relationship at issue—prosecutors can proceed under I(g)(2) (coercion via provider status) or other subsections. Allore assures that I(g)(2) is not redundant and has independent reach.
Surprise cases: Under I(i) and its misdemeanor analog in RSA 632-A:4, I(a), anticipate defense efforts to offer consent evidence. The correct framing is that such evidence goes to whether the State has proven concealment/surprise and the lack of an adequate opportunity to flee or resist—not to an affirmative consent “defense.”

C. For Defense Counsel

Under I(g)(1), focus on elements other than consent: contest the existence/scope of a “treating relationship,” the timing (including “within one year of termination”), whether the complainant was a “client” under the governing professional standard at the relevant time, and whether the specific professional benchmark applies to the defendant’s licensure and role.
Challenge the professional standard’s applicability: If the accused is not within the scope of a New Hampshire regulatory regime or if the governing standard is not categorical (e.g., allows relationships after a waiting period post-termination), argue that the “professionally recognized” element is not satisfied in the State’s theory under I(g)(1).
Under I(i), frame “consent” as a theory of the case: marshal evidence that the encounter was consensual to negate concealment/surprise and request a theory-of-the-case instruction if supported by the evidence (see Ramos). Avoid styling “consent” as a statutory defense under RSA 626:6 for I(i); that will be rejected post-Allore.

D. Judicial Administration and Instructions

Jury instructions must reflect that consent is not a legal defense under I(g)(1) or I(i), while preserving a defendant’s right to argue—as a factual matter—the absence of concealment/surprise under I(i).
Trial courts retain discretion whether to give a theory-of-the-case instruction based on the evidence actually admitted.

Complex Concepts Simplified

1. Consent under RSA 626:6, I

Negates an element: If “consent” means the State cannot prove an element of the crime, consent is a defense. Example: where lack of consent is an element.
Precludes the harm: Even if consent does not negate an element, it can be a defense if it defeats the harm the statute aims to prevent (subject to statutory exceptions).
Allore’s application: For I(g)(1), consent cannot negate the “professionally recognized” element when the governing standard categorically forbids sexual client contact. The Court found it unnecessary to reach the “precludes the harm” prong.

2. “Legal Defense” vs. “Theory of the Case”

Legal defense (confession-and-avoidance): The defendant admits the conduct but claims a legal excuse or justification (e.g., consent where it negates an element or precludes the harm).
Theory of the case: The defendant disputes the State’s factual narrative—e.g., “This was a consensual encounter, so the State has not proved it occurred by concealment or surprise.”
Why this matters: Under I(i), consent cannot be pleaded as a legal defense, but evidence of consent is admissible to contest the concealment/surprise element.

3. “Professionally recognized as ethical or acceptable”

Definition source: Professional standards governing the actor’s profession in New Hampshire, including statutes and regulations (e.g., Nurse Practice Act for nurses).
Dynamic content: Those standards may evolve; I(g)(1) was drafted to accommodate that evolution across professions.
Practical upshot: If the standard classifies sexual conduct with clients as misconduct, patient consent is legally irrelevant to the “professionally recognized” element.

4. “Through concealment or by the element of surprise”

Substance: The State must prove the act was achieved by stealth/surprise, before the victim had an adequate chance to flee or resist.
Logical relation to consent: Genuine consent and “concealment/surprise” are mutually exclusive in this framework; proving one negates the other.

Open Questions and Practice Pointers

Scope and timing of “client” status: The NPA speaks in terms of “client.” Whether, and to what extent, a complainant remains a “client” after termination of care (and for how long) may affect the I(g)(1) analysis where the professional rule is time-bound or silent on post-termination relationships. The criminal statute reaches one year post-termination; counsel should examine whether the applicable professional standard speaks to that interval.
Professions without categorical bans: Where a profession’s ethical code permits post-termination relationships (sometimes after a cooling-off period) or does not speak to the issue, the State may rely more heavily on I(g)(2) (coercion via provider position) or other subsections. The line between the two prongs will be fact-intensive.
Mens rea for the “professional standard” element: Allore did not address whether the State must prove the defendant’s knowledge of the professional standard (or negligence as to it). Absent explicit statutory mens rea, litigants should preserve arguments, but current practice often treats the “professional” element objectively.
Evidentiary rulings: In I(i) prosecutions, courts should be attentive to the admissibility of consent evidence as relevant to concealment/surprise while managing potential prejudice and applying any rape-shield provisions as appropriate to the facts.

Conclusion

State v. Allore establishes two clear rules with substantial practical bite. First, for “medical provider” sexual assault under RSA 632-A:2, I(g)(1), the existence and content of professional standards—not a patient’s apparent consent—determine whether the conduct is “professionally recognized as ethical or acceptable.” For nurses, the NPA’s categorical prohibition on sexual conduct with clients makes consent legally irrelevant, and similar outcomes are likely across professions with comparable standards. Second, under the “surprise” provision, RSA 632-A:2, I(i), consent is not a legal defense, though consent evidence may be used to argue the State has failed to prove concealment/surprise beyond a reasonable doubt.

Doctrinally, the decision reinforces textualist statutory interpretation, endorses the criminal law’s use of professional regulatory standards to define operative elements, and clarifies the critical distinction between a “legal defense” and a “theory of the case.” Practically, it shifts litigation under I(g)(1) toward whether a professional standard applies and whether the treating relationship and timing elements are proved, while channeling “consent” arguments under I(i) into factual disputes for the jury. Allore thus supplies a coherent roadmap for courts and litigants in a sensitive and consequential area of criminal law.