Situation
At a windward mark to be left to port, boat A entered the zone on starboard tack while boat B passed head to wind in the zone and completed her tack to starboard, below her layline and overlapped to leeward of boat A. In order to round the mark, she luffed, touching the mark and causing boat A to sail above close-hauled to avoid contact.

Question 1
Was boat B fetching the mark when she tacked to starboard?

Answer 1
Yes.

A boat is fetching the mark if she is able to pass to windward of the mark and leave it on the required side without changing tack. Boat B was able to pass the mark without changing tack; the fact that she touched it is not relevant. See definition Fetching.

Question 2
Would the answer be different if boat B additionally broke rule 42 in order to round the mark?

Answer 2
No.

The definition Fetching.does not have exceptions.