- Eli Rubashkyn, a transgender refugee, has for a second time been denied a discharge without conviction for pouring tomato juice on Posie Parker.
- Justice David Johnstone cited the need to deter physical protests that risk provoking violence and undermining the rule of law.
- Rubashkyn was sentenced in Auckland District Court in September and attended an appeal hearing at the High Court at Auckland a month later.
The
transgender refugee who
poured tomato juice over the head of controversial
British activist Posie Parker during a raucous rally at
Auckland Central’s Albert Park, had previously been the victim of serious assaults spurred by discrimination.
That traumatic background made it “somewhat more understandable” that Eli Rubashkyn “succumbed to this instance of poor decision-making”, a
High Court at Auckland judge has noted in a newly released appeal decision.
But despite his at-times sympathetic tone, Justice David Johnstone said he couldn’t overturn a
district court decision denying the 36-year-old pharmacist a discharge without conviction because of the message it would send to others.
“...It is important that those who wish to oppose, by protesting against, views they consider abhorrent, do so without engaging in physical attacks,” he wrote near the conclusion of his 11-page decision.
“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.”
Rubashkyn, whose legal name is Eliana Golberstein, arrived at the Albert Park band rotunda on March 25 last year amid a “Let Women Speak” rally by Parker that had drawn a massive, chaotic crowd of protesters and counter-protesters.
She was charged with two counts of assault after she poured the juice over Parker, whose legal name is Kellie-Jay Keen-Minshull, and event organiser Tania Sturt, who was standing next to Parker.
Rubashkyn lost her job after the incident, which was filmed and which she admitted to in a television interview.
She
pleaded guilty to both charges earlier this year but had asked for a discharge without conviction during her Auckland District Court sentencing in September so that she wouldn’t have to disclose a criminal record when travelling internationally.
“There was significant opposition to the rally occurring, especially from the transgender and rainbow communities,” the agreed summary of facts for the case states.
“Before the rally, this involved an
unsuccessful judicial review of Ms Keen’s visa, which permitted her to enter New Zealand (and, in consequence, attend the rally).
“The opposition to the rally was because of a concern that Ms Keen held anti-transgender views and her intention was to hold rallies espousing those views.”
Parker had initially
promised her followers in 2023 that she would return to New Zealand for a pre-trial hearing in which
Rubashkyn’s lawyer argued that the prosecution should be dropped because it was a political protest.
The lawyer cited as precedent the 2016 Waitangi incident in which a protester was not charged for
throwing a dildo at then-Government minister Steven Joyce’s face.
Parker later cancelled her return to New Zealand, explaining that she didn’t
trust police and authorities to protect her. She declined to make a statement to police early on and did not attend the sentencing. But Sturt did attend hearings.
She said in a victim impact statement that she was continuing to struggle with symptoms of trauma from the event.
“I waited for my skin to burn,” she said, explaining that she first thought the liquid poured over her was acid. “I felt terror then disgust and violation.”
Rubashkyn’s September 2023 attempt to have the case tossed out was unsuccessful, as was her request for a discharge without conviction a year later.
Auckland District Court Judge Kirsten Lummis ordered her convicted and discharged, deciding that no other punishment was necessary, after Rubashkyn having been subjected to death threats following the assaults.
Last month she sat in the gallery at the High Court at Auckland as defence lawyer James Olsen tried to ensure his client’s previously unblemished record remained clean. But to overturn a district court decision, he would have needed to show a “miscarriage of justice” had occurred.
That simply wasn’t the case, Justice Johnstone said in his newly released decision.
“She has filed an affidavit in which she says she ‘felt compelled to act’,” Johnstone wrote. “Of course, it was entirely improper for Ms Golberstein to offend as she did.
“Her 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.”
The judge acknowledged her “otherwise well-evidenced good character”, which he said was much to her credit, and outlined her background which brought her from Colombia to New Zealand.
“Ms Golberstein is intersex, having been born with partial androgen insensitivity syndrome,” he explained. “She has one X and one Y chromosome (typically seen in males), but is resistant to hormones (androgens) that produce a male appearance. She became transgender by expressing her gender identity as female during her adolescence.
“She suffered persecution due to her appearance, including as the target of violence intended to cause her severe physical harm, in both the country of her birth and when travelling to engage in postgraduate studies.”
That harm included having been stabbed and shot at in Colombia, Rubashkyn has previously said. She was later the first person granted refugee status by the United Nations due to intersex discrimination.
“This is my safe space, my safe haven and I’m not gonna let that be taken away from me because this is my home,” Rubashkyn said in a TV interview shortly after dousing Parker. She described the metaphor intended by the tomato juice: “Her words are blood because they are killing our people”.
She added: “I feel safe here, I don’t want hate, I don’t want nothing, I don’t want that here, I want to be happy”.
Justice Johnstone briefly cited that interview as an aggravating feature of the defendant’s conduct because she sought to justify her conduct.
