As yoga teachers, many of us guide our students through touch regularly as we adjust their poses. But can this ever go too far? Protect yourself and your students by understanding the legal and ethical issues surrounding touching in class.
This column appeared in Yoga Journal‘s site in the “For Teachers” section:
The propriety of touch is an issue that concerns all health care and healing professionals, yet the ethics of touch may be more complex in yoga teaching than in other, licensed professions. To protect yourself and your students, it’s important to understand the ethical and legal ramifications of inappropriate touch as well as how to discern the frequently ambiguous boundaries between the permissible and the inadvisable.
The question is simple: How can you determine when guiding through touch will deepen a student’s yoga practice, and when the adjustment will be distracting or distressing?
Some yoga teachers ask students’ permission to do touch corrections before or during class; others seek permission non-verbally through a complex exchange of body signals during the practice. Still others announce that touch adjustments are part of the class and that any student who feels uncomfortable should let the instructor know, while others have students sign a waiver form in the hopes of staving off potential liability should the correction go awry. Which of these strategies is best–legally, ethically–and which most honors the philosophy of yoga?
Touch is complex: it can illuminate or darken, elevate or depress, celebrate or invade. At worst, touch can be physically injurious or sexually invasive (see The Trouble with Touch, YJ March/April 2003). Further, the profound and ideally nurturing relationship between yoga student and teacher during class can leave room for “shades of gray” in physical contact.
The causes of inappropriate touch in yoga, as in other healthcare professions, can include the provider’s inexperience, unmet emotional and sexual needs, and psychological transference (unconsciously transferring one’s emotional past and psychological needs into the present relationship). The potential perils of touch cause many health professions to shun it: for example, to limit possible sources of liability, psychologists and other mental health care providers often avoid all physical contact with their patients. Other professions, such as physical therapy and massage therapy, embrace touch as a healing modality, but pronounce sexual touch wrongful and legally actionable.
Because yoga teaching bridges mind and body, physical contact can neither be totally avoided, nor completely embraced. This presents an interesting paradox: how can we find that place of balance where contact is appropriate and neither inadequate nor violative? It is a question that forces the yoga teaching community into the borderland between the rational/scientific and the spiritual/intuitive. Simply put, touch imparts information, positive or negative, and a yoga class often brings heightened sensitivity to that source of information entering the portals of body, mind, and spirit. If the information is negative, the student will be likely to sense that right away.
Legally, the basis for permissible touch is the theory of implied consent: a person’s agreement to be touched can be implied by law, as well as expressly given verbally or in writing. This notion comes from the tort of battery, which is defined as touching (or making contact) with another person without that individual’s consent.
Consent to a commonly accepted amount (and nature) of contact is implied in certain social situations such as a crowded bus. Touch beyond the boundary of the implied consent is impermissible, and thus legally actionable as battery. This means that unless the student expressly tells the yoga teacher not to make physical contact, the yoga teacher generally has the student’s implied consent to touch within socially accepted limits; contact beyond these limits (such as sexually-motivated touching) could be grounds for a lawsuit.
In addition to battery, negligence offers a second potential theory for liability. In health care, negligence (malpractice) consists of violating the applicable standard of care, and thereby injuring the patient (see Should Yoga Studios Ask Students to Sign a Liability Waiver). A student who believes he or she has received an injurious adjustment may be able to claim that the yoga teacher violated teaching standards and thereby committed malpractice. Although it may be difficult to establish a universally recognized standard for touch for the yoga teaching profession, the student’s claim could nonetheless be difficult to defend against, because yoga teaching often involves a highly fluid, individualized interaction that increases the ambiguity of physical boundaries.
Psychotherapy has not solved the problem of touch. Applicable legal rules contain general language, such as admonishing practitioners to refrain from “engaging in sexual contact with a client” without further defining what kinds of behavior might constitute such contact. Similarly, ethical guidelines asking psychotherapists to refrain from “behavior primarily intended to gratify sexual desires” again fail to specifically identify problematic actions, and instead rely on “intent,” which in the hindsight of a lawsuit or disciplinary action may be difficult for third parties to discern. Whether professional boundaries have been crossed often depends on such things as “the situational context,” an ambiguous term that again leaves many possibilities unspecified.
To solve the dilemma of differentiating permissible from impermissible touch, some studios may be tempted to have their teaching “assistants” move through the class and give every student the same adjustment for a particular pose. Unfortunately, this approach conveys the impression that standard poses apply to standard bodies (and standardized persons inside those bodies). Moreover, a student who is deeply in touch with the pose may find the assistant interfering with the awakened sense of repose, harmony, and balance that Patanjali defines as our natural state.
A preferred approach to the standardized adjustment is to ask permission first, or alternatively, to invite students to opt-out of touch corrections before the class starts. Teachers can also try to intuit whether and to what extent a touch adjustment will be appropriate. (This, of course, assumes the yoga teacher has clear boundaries and is therefore unlikely to misuse touch out of unmet needs or other mental and emotional distortions). On a broader level, it may be helpful for the profession to develop clear ethical standards regarding touch–standards that, unlike the examples above, specifically differentiate permissible from inappropriate conduct.
The right touch can be a sacred experience for some. It can connect teacher and student at a number of levels. By respecting that sacred connection through appropriate touch and other subtle forms of guidance, including verbal suggestions, body language, and even energetic intention, teachers can help move their students deeper into that place of stillness within which wisdom resides.
Michael H. Cohen, JD teaches at Harvard Medical School and publishes the Complementary and Alternative Medicine Law Blog (www.camlawblog.com).
The materials in this website/e-newsletter have been prepared by Michael H. Cohen, JD and Yoga Journal for informational purposes only and are not legal opinion or advice. Online readers should not act upon this information without seeking professional legal counsel.