As an Albert Park survivor, I felt a lot was riding on the sentence to be handed down on September 2, 2024. If Eli Rubashkyn got away with the tomato juice assault at the abandoned Let Women Speak event at Albert Park in March 2023, it would be a slap in the face to the named victims, Tania Sturt and Kellie-Jay Keen-Minshull, and it would send a chilling message to the other women gathered there that day, that freedom of expression no longer applies to those wishing to speak up for women’s rights in New Zealand.
I met Tania through the Albert Park rally and the day was quite an eye-opener to me to the depths of the infiltration of gender ideology in New Zealand. I knew it was bad, but I really had no idea. It’s been an honour to work alongside this veteran women’s rights activist, and to support her during the sentencing was a no-brainer to me. We were both a bit nervous due to all the unknowns – who would attend, what would be said or done, what the outcome would be. So, we met early and took a leisurely drive into the city. We had lunch with Simon Anderson, a nice man with great shirts (I promised I’d mention them!) who just happened to have a camera in the right place at the right time that fateful day. He is very interested in this case, has a quirky sense of humour that kept our spirits up, and was very supportive of Tania throughout the process. Given the media’s proven infatuation with the trans lobby, he did a couple of interviews with Tania to make sure her voice was on the public record.
VICTIM
Proceedings began with Tania’s Victim Impact Statement which was a very powerful reminder of the traumatic events she faced that day at the hands of someone who was offended at the thought of women speaking in public. She included a vivid description of the psychological toll of having an unknown substance poured on her, “I felt terror, then disgust and violation … You did not harm me physically, but you could have.” She went on to say “You were interviewed on camera grinning and stating you wanted to prevent hatred in this country.” Such perverse irony. Tania bravely ended with this: “Your actions instigated a series of events which have impacted my finances, my employment, my peace of mind, my mental and physical health, and my relationships. I care about my right to be a woman who can stand in public and freely speak the truth unimpeded by the actions of someone who disagrees with me.” Women the world over stand with you, Tania.
DEFENCE
Then the defence counsel, James Olsen, began his verbal submissions, recapping events from his client’s perspective. Kellie-Jay Keen and her views were described as hateful and anti-trans while Rubashkyn’s actions were painted as a virtuous reaction to various alleged experiences in his country of birth.
Olsen said his client stands by his pre-meditated actions and his interview on One News bragging about keeping New Zealand free of dangerous anti-trans views, but posited the assault could be described as “extreme protest”; he was exercising his right to freedom of expression and perhaps just went too far with the juice. He made out his client was also a victim, going so far as to say he suffered as much as the named victims with the bodyguard manhandling to remove him from the rotunda, water splashed on him, and alleged death threats and psychological harm in the following weeks and months. But hang on a minute. Facing the consequences of the actions you chose and planned to do is not at all the same thing as facing the consequences of someone else’s actions forced on you. He expertly distorted the nature of the harm done. As my mother used to say, “How do defence lawyers sleep at night?”
The judge questioned the defendant’s remorse, noting the lengthy time between charge (April 2023) and guilty plea (June 2024). Counsel said his client had had time to reflect on his actions. No further excuse was offered. I agree with what Judge Lummis was clearly thinking; that there’s a vast difference between true remorse for your actions and mere regret at having to face the consequences of them.
Of all the outlandish things Olsen said, this next defence had to be the most offensive: he drew our attention to the sometimes-unlawful actions of the suffragettes in the early 20th century to gain equal voting rights with men. I can’t remember his exact words, but, to paraphrase, he said that sometimes today’s criminals are tomorrow’s heroes, those who are “vindicated by history”. He actually asked the court, and a female judge at that, to accept the equivalence of women using violence to gain equal rights with men, and a man using violence to silence a group of mainly middle-aged women he disagreed with. It was an especially audacious tactic given the reason for the event at which the assault took place: to make women’s voices heard on a social issue which seriously threatens our privacy, and safe participation in society. Whenever the other side offers a defence for their aggression they never see the irony and hypocrisy of their position.
SENTENCING
In his submissions regarding sentence, Olsen noted his client’s previous good conduct since arriving in New Zealand in 2014, the harm suffered for his actions, and the effect a conviction would have on his client’s ability to travel. Something Kellie-Jay Keen would like to be able to do, I’m sure, but who feels unsafe to come to New Zealand, our little haven of trans-activism.
Further, Olsen said no harm was done to the two victims. Did he forget the psychological, emotional, financial, relational harm Tania mentioned just minutes prior? He also drew the court’s attention to a previous case of someone who got a sentence of 18 hours community service for spitting on a police officer. As this was a bodily fluid, he submitted, this was a worse offence than the one committed with mere tomato juice; completely ignoring the different settings, parties and purpose of each altercation.
The common assault charge carries a maximum penalty of six months' imprisonment or a fine of up to $4,000. The only way is up from here, surely.
Olsen claimed that a conviction for this offence would be disproportionate punishment for the consequences of his client’s actions which amounted to excessive protesting, nothing like a Saturday night punch-up. Excuse me? He has still been charged with assault. And let’s not forget that the other man who assaulted another woman at the same event was discharged without conviction for that very “Saturday night punch-up” scenario Olsen offered. So that argument doesn’t hold water. A discharge without conviction in this case could very well send the message the two are the same (small) thing after all; a disastrous outcome for New Zealand women.
His final tactic was to ask the judge not to inflate the nature of the offending because of the cultural situation and media interest. But I would say, by the same token, this is no excuse to minimize the nature of this offending either. This was a premeditated attack on women’s free speech. That is all the event was about, women speaking. The organisers had a permit and, as far as they knew, police cooperation and backing. The cultural situation and media interest is not what makes Rubashkyn look bad, rather it is what put the women there in danger; a riot whipped up by media with government backing. The cultural situation changes nothing about the nature of the offending, but everything about the nature of the harm inflicted.
As Tania has rightly stated in her opposition to the defendant receiving a discharge without conviction, “What is effectively an acquittal will showcase and promote the societal misogyny and violence against women in New Zealand and will negate the intent of the Bill of Rights Act.” She refers, of course, to freedom of expression; a right which the women at the Let Women Speak event at Albert Park were exercising.
So, in summary, the defendant inflicted violence to prevent violence. That’s his defence. I can’t get my head around that one.
Counsel for the prosecution, surprisingly, offered no verbal submissions, the judge wanted to deliberate further, and it was after 5pm, so the court was adjourned until tomorrow. It was so disappointing to leave without it all being settled.
DAY 2
“This was not an easy decision.” Those were not the first words we wanted to hear from the judge ahead of the sentencing.
Judge Lummis did all the talking today. And it was all about the defendant. She recapped the lead-up to the event in March 2023 from Rubashkyn’s affidavit – his personal history which has been the reason for his activism for trans rights and his deep commitment to social justice. The judge went to great lengths to praise his work and give context to his presence at Albert Park. I do wonder why there is such a focus on the offender’s past these days. Nothing in my past should alleviate me of my responsibility for my actions. Human beings have free will, self-awareness and rationality. In my view, his history is completely irrelevant to his actions on the day. Where is the consideration of the background and context of the victims?
Regarding the sentence, Judge Lummis told the court she had to look at the gravity of the assault, the consequences of that assault and she had to apply proportionality to the sentence.
GRAVITY
For gravity she noted that, although it was a low-level assault and no physical harm was done, the premeditated nature of the attack added to its seriousness. She also noted there had been no apology or evidence of true remorse. Despite clear video evidence of the attack and his One News interview bragging about the assault just minutes later, he applied to have charges dismissed in September 2023. Judge Ryan decided in October that there was a clear case to answer and he waited another 8 months to enter a guilty plea.
Mitigating factors – the delayed guilty plea, prior good character, letters of support, work for the ‘rainbow community’ here and overseas, and diplomatic work. For some reason she felt the defendant would do things differently next time. But I’m not so sure about that given that delayed guilty plea.
CONSEQUENCES
For consequences, she noted these were significant on both sides with a surge of abuse experienced, but that he had regained employment, was generally well respected in his circles, and she had not been presented with any reason to consider travel an immediate problem. She noted even with a conviction he would be able to travel, albeit with some potential challenges.
SENTENCE
Judge Lummis felt a strong sentence would have a general deterrent effect, a reminder that people can’t take the law into their own hands. This was, after all, a premeditated assault. So, he was convicted of the two charges, but, as she considered some consequences had already been experienced, and for proportionality, he was discharged with no further penalty. Overall, we were pleased with this sentence.
REFLECTIONS
It was hard to sit there and listen to the judge praise the offender for the parts of his life that have no real relevance to his conduct that day. He may not have organized the protest and he may not have physically harmed anyone with his actions, but he intended to send a message that our views were not welcome. He bragged about that message. He was celebrated for that message. And he pleaded not guilty despite video footage being available to an international audience on the day of the offence occurring. A conviction was the only just outcome.
I was there when the assault occurred and I was there when the offender received his punishment. We still await the results of the IPCA complaint, but this is a huge step towards closure. As loud as the protestors’ message was to us at Albert Park, I’m very pleased that on Albert Street, the New Zealand justice system felt it necessary to send as loud a message back to the anti-women protesters, that in a free and democratic society, difference of opinion is no excuse for violence. This was a victory for women’s rights in New Zealand. Or, as Tania would say, “Boom!”
*I use male pronouns throughout because the words in Rubashkyn’s own story are “assigned at birth as a male” and “later transitioned to be a woman”. But humans cannot change sex. https://teara.govt.nz/en/video/47405/elianas-story
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