NOVEMBER 2024
Nicole Evans
I am a mix of overjoyed and righteously defiant following the news of Eli Rubashkyn’s overturned appeal on November 18, 2024. Finally, 20 months after an appalling display of mob mentality, anger and hatred, I hope and pray that this key offender at the March 25th riot in Albert Park will get the message that differences of opinion do not equate to, nor do they justify, physical or psychological violence.
Rubashkyn was convicted and discharged on two counts of common assault in the District Court in September 2024. The defendant had asked for a discharge without conviction during the sentencing to avoid having to disclose a criminal record when travelling internationally.
But Judge Kirsten Lummis had very valid reasons for the conviction: first, that this was a premeditated attack, second, Rubashkyn had shown no true remorse.
The maximum penalty for a conviction of common assault is a $4000 fine or 6 months in prison. I was present at the Albert Park event, I supported what it stood for and I think Rubashkyn got off lightly with no penalty. New Zealand is a free and democratic society and the protesters were entitled to be there, but when you choose physical protest, you’ve crossed a legal line.
Justice David Johnstone discussed this in his decision rejecting Rubashkyn’s appeal:
It is important that those who wish to oppose, by protesting against, views they consider abhorrent, do so without engaging in physical attacks. … The courts should be seen to denounce, and in that way generally to deter, that form of protest, because of the risk it will be copied, perhaps more harmfully, and because of its inherent tendency to undermine rather than facilitate the rule of law.” [i]
Free speech is protected in New Zealand law up to the point that it incites violence. No-one proved Kellie-Jay Keen intended to incite violence with the rally, or the objection to her visa being granted would’ve been upheld. Tania Sturt, one of the organising committee, defended the event to media, explaining, “We are well aware of the risk from anti-women's rights protesters or people wishing to derail our intended goal which is to give space for women to speak. We are dedicated 100% to peaceful rallies.”[ii] Yet the whole world saw the violence incited by those opposing the event.
The two victims of these assaults, Tania Sturt and Kellie-Jay Keen, and their supporters haven’t been upset for 20 long months about some stained clothing. We weren’t pleased with the conviction in September because we wish any harm to befall the defendant. We were pleased because finally someone deemed our rights worthy of defending. We were pleased because physical violence as a form of protest is against the law. We were pleased because, finally, the applicable laws for this situation were being upheld.
The victims were vindicated in Justice Johnstone’s decision:
“I do not accept Mr Olsen’s submission for Ms Golberstein (Rubashkyn) that her conduct involved no violence,” the judge added. “Violence is a word capable of multiple meanings. Here, in rejecting Mr Olsen’s submission, I incorporate within its meaning conduct involving the intentional application of force in a manner that may inflict psychological harm. I infer from the agreed summary of facts that Ms Golberstein’s conduct will have come as a shock to those she assaulted, causing them momentary fear before they recognised they had been doused in no more damaging a liquid than tomato juice. And I note that, in its context, Ms Golberstein’s conduct was inflammatory, and risked provoking further violence, involving bodily harm.”
And this is exactly what appeared to happen on that fateful day. As soon as the juice was poured, the crowd, which had been building energy, suddenly surged as one towards the rotunda and the couple of hundred women there were trapped with nowhere to go. I got out because I left early. But if you look through any of the footage it’s clear to see escape was almost impossible for those on the rotunda itself. It took the courage of a bodyguard and a few good women to get Kellie-Jay Keen out and the rest of us were left to fend for ourselves. Tania Sturt herself was punched and kicked when the force of the crowd mowed her down. The police only cared about getting the problem – for some insane reason, this was assumed to be Kellie-Jay Keen, not the rioting mob – out, not protecting every one of us who came to enable, listen and take part in what was to be a nonviolent rally about women’s rights in the face of the misogyny and lies sweeping through our policies and laws. And look what the day turned into – the physical manifestation of the very misogyny and lies we wished to expose.
Justice Johnstone summed it up perfectly:
“[Rubashkyn’s] actions blatantly crossed a line that must be maintained, between the legitimate verbal or written expression of contrary opinion on one side, and physical conduct that risks provoking violence or harm to individuals, communities and institutions on the other.”
Rubashkyn has joked that it was “only” tomato juice, nothing harmful, nothing to get upset about. But it was never about the tomato juice. It was about the shutting down of women’s rights to gather, to speak, and to hold opinions others may disagree with.
In my opinion, the rejection of this appeal was the only correct interpretation of New Zealand legislation. Our Bill of Rights Act protects and promotes human rights and fundamental freedoms in New Zealand. Even if our law enforcement and law makers can’t be counted on to defend and uphold them, I’m relieved those who apply the law to real people and real situations still can and still do.
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