R. v. Kulkarni, 2011 ONCJ 309
Count 2 & 3
Claimant A & B were friends. B was visiting A from out of town and the two went to a yoga class, both of them being yoga enthusiast. A and B went to yoga class where it turned out that the Accused was the instructor and A & B were the only student. During the class, there were inappropriate touching on A and B including the following:
- A: during the “downward dog” pose, the Accused approached from her side and put one hand on her buttocks. She described that he made a quick poke with his finger on her pants as if to penetrate her anus. As he did so, he said, “Lift your tail bone.” He let go of her after he lifted her. This lasted for two to three seconds.
- A: While in the “cat cow” pose, the Accused was standing closer to her head. He put his hand between her legs, swiping her crotch and rubbing her vulva with his palm over her clothing. He also touched her buttocks again. Each time she breathed, the Accused told her to inhale then exhale while at the same time moving his hand back and forth from her vulva to her buttocks. This touching lasted for between fifteen and thirty seconds. He used a fair degree of pressure when he did so, pushing against her body as he moved his hand.
- A: Throughout the class, including those times when the Accused touched her, A attempted to focus on her breathing and poses because yoga requires great concentration. She said that she was “trying to normalize what was going on.” She felt very uncomfortable and had to work harder to maintain her yoga pose when the Accused was touching her. She disagreed with the suggestion that she did not think the touching was inappropriate when it happened. She agreed that at first it didn’t register that the touching was sexual. She agreed that she told the police that her first thought was that the touching was O.K., but it really wasn’t. H.L.’s evidence is that she wasn’t ready to understand what was really going on when she was being touched. H.L. testified that she was confused about what had happened and didn’t fully appreciate that something negative was taking place. She didn’t want to break her concentration, she didn’t see or hear G.-S. complaining, and she did not want to the first one to say anything. This is why she did not tell Mr. Kulkarni to stop.
- B: During one of the “cat” pose cycles, B was arching her back. The Accused told her that he would help her arch some more and cupped her vulva with one hand while placing the other on her buttocks. He pulled her back, causing her to bow more and as he pushed her forward, her spine arched more. This pulling and pushing lasted two to three minutes and his hand was on her vulva the whole time. He was also continuously giving instructions while touching her. The Accused did not ask her permission to touch her in this manner. Nor did the Accused explain that he needed to touch her vulva and buttocks to extend the pose.
- B: While the Accused was touching her vulva in the “cat” pose G.-S. felt confused because nothing like that had ever happened to her before. She also saw that the Accused did the same thing to A and B thought that since A had been in the Accused’s class before and A was not complaining that his conduct must be a part of the yoga instruction.
- B: During “Sit Up Pose”, the Accused twice used both of his hands to take B by her buttocks and lifted her up and down. At no time did the Accused explain in advance what he going to do other than stating, “Let’s extend this pose.”
- B: While in the “warrior/triangle” pose the Accused placed one hand on B’s back and the other one on her buttock, holding her firmly for one to two minutes. This took place near the end of the class. While the Accused was holding her buttock, B thought to herself, “This is definitely inappropriate.” Never having been in such a situation before, she did not know what to do. She also thought that perhaps A would explain later that the Accused was merely eccentric. As a result, A said and did nothing while it was happening.
The court found that the Accused is guilty as:
- The Accused intentionally applied force to A and B for the above described touching
- The touching was sexual in nature:
- Each complainant had only a business relationship with the Accused;
- The Complainants equivocation at the time as to whether the touching was sexual or not only shows that they were in a state of disbelief, confusion, or denial (as A and B explained to the police). When circumstances permitted reflection, it was clear to each of them that the touching was sexual.
- That touching of an intimate area such as the chest, buttocks or vulva is not necessary to teach yoga;
- Despite asking for permission in the past to touch the Complainant in non-sexual areas of her body, this time the Accused did not ask he if he could touch their genitalia and buttocks before doing so;
- There was no consent: their relationship was strictly business and their failure to complain or communicate their displeasure or concern to the Accused during the activity does not mean that they consented
- There was no mistaken belief of consent: The fact that A or B didn’t stop the Accused or complain after he first started touching them in the ways they described.This, does not provide a basis for honestly believing they would agree to the first such touch. Nor does her failure to complain or resist after the first touch shows consent for any subsequent touching of her vulva, anus, or buttocks. To so find would be to ignore his knowledge of his duty to first seek permission before touching any student.
We can see from this case that A and B were reluctant to stop the uncomfortable touching or to say anything. They were at first, confused and not sure what was happening and they relied on each other’s silence. This is the usual response most victim of sexual assault would have, which is very normal. To stop sexual assault, however, we need to know when it is a sexual assault and we need to express the unpleasantness. It is nothing to be ashamed of. In this case, A and B spoke to the Accused after class and expressed how his touching was uncomfortable to them and the Accused played innocent. He replied to them that he did not expect any discomfort and that he was just trying to help them further advance their yoga poses. This is what the offenders want. They will touch you as if it is a normal thing and they will expect you to be confused. They will try to make you feel like an overly sensitive person when you confront them. We know, however, when someone touches us in an uncomfortable way that it is wrong. We know it right away. Instinctively! Trust your instinct and confront. You have every right to do so.
Follow this link for a simple checklist and examples.
Law in Style. 