R. v. Kulkarni -Count 1

R. v. Kulkarni, 2011 ONCJ 309

Count 1

Claimant had difficulty understanding and executing the recommended deep breathing. Claimant asked the accused to help her after the class. While explaining the deep breathing technique to her, the Accused “came behind [the claimant] and held her tightly by wrapping one arm between her navel and chest and put the other hand on her vaginal area…. The fingertips of his hand were on the front of her vagina…. As he held her thus, the Accused told [the claimant] to breathe and that her breathing was to ‘start down here’ as one or two of his fingertips were tightly on her labia.” Claimant went to the accused classes before three or four times and the accused always asked each student and herself if he could touch them to correct poses beforehand. The court found the Accused guilty of sexual assault finding that

1. There was intentional appliance of force: the touching was neither incidental nor inadvertent
2. The touching had sexual purpose: that the touching of her vulva was sexual in nature;
3. There was no consent: her consent to touching to demonstrate deep breathing technique, did not extend to touching her crotch for any reason
4. The Accused did not mistakenly believe of consent: The Accused did not honestly believe that she consented to being touched on her vulva by his fingers as given the Accused’s knowledge that he needed to first ask before touching a yoga student, he could not, and did not honestly think that the claimant’s silence or failure to resist was a green light to continue.

Elements for Sexual Assault:

1. Intentional appliance of force by the accused to the complainant
2. Sexual purpose
3. No consent
4. No mistaken belief in consent