He fractured his infant stepson’s skull with such severity the Air Force said it was “likely to produce death or grievous bodily harm.” And yet former airman Devin Kelley, who killed 26 people at a Texas Baptist church on Sunday, was given just 12 months in a military prison.
While coverage of the Texas shooter has focused on the Air Force’s failure to report his domestic abuse conviction to the FBI, which allowed him to buy the firearm used in the massacre, former military justice officials say the mistakes began years earlier and highlight the lax approach the Air Force takes with domestic violence.
“The sentence is light for the offenses he committed,” retired Air Force Chief Prosecutor Don Christensen told VICE News.
Christensen, whose office handled more than 2,000 trials during his 2010-2014 tenure, is now president of the military victims advocacy group Protect Our Defenders. In his experience, he said, domestic violence was often ignored, and the Air Force’s view of violence against women remains outdated. “I would say it’s laughable to say they take domestic violence seriously,” he said.
Kelley was court-martialed in 2012 in front of a military judge for two counts of assault — on his stepson and his then-wife — with a maximum punishment of five years in jail. Retired Lt. Col. Rachel E. VanLandingham, who was a military lawyer for 12 years, said the fact Kelley was sentenced to only 12 months was “shocking.” “The members didn’t take this crime as seriously as they probably should have,” she said.
Critically, Kelley was released from the Air Force with a “bad conduct” discharge rather than a “dishonorable discharge.” A dishonorable discharge results in the automatic loss of all veteran benefits and privileges — but is only mandatory when someone is convicted of espionage, sentenced to death, or convicted of a penetrative sexual assault offense. Domestic violence doesn’t automatically trigger a specific level of military punishment.
More importantly, a dishonorable discharge would have triggered an automatic notification to the FBI that this person is banned from buying firearms, where a “bad conduct” discharge does not. His felony domestic violence conviction should have prevented him from buying guns in the future. That’s where the system broke down.
The Holloman Air Force Base Office of Special Investigations, where Kelley was stationed, was required to pass his domestic violence–related felony convictions along to the FBI. That information is supposed to then be entered into the National Criminal Information Center that is used to carry out background checks on anyone who wants to purchase a firearm.
On Monday, the secretary of the Air Force, Heather Wilson, and Secretary of Defense James Mattis announced a full review of what happened in the Kelley case. There’s currently no official deadline for when the results of that review will be published, but the White House has said it must happen swiftly.
“The Air Force is moving aggressively to review why this error occurred, and that review will be completed in days, not weeks,” Vice President Mike Pence said Wednesday.
But former military justice officials say the Air Force needs to look at how it handles domestic violence cases in general.
When the issue of spousal abuse arose during his 23-year military career, Christensen said, he witnessed Air Force commanders talking badly about victims of domestic violence in private, with a prevailing mentality of “she’s just out to get him” if a military serviceman was accused by his wife or girlfriend.
These attitudes matter because military trials are governed by commanding officers, not lawyers, as in the civilian system, and jury panels are typically made up of a servicemembers’ peers. As a result, he said, sentences around domestic violence cases often have no rational relationship to the severity of the crime.
“The military has a dysfunctional sentencing system that is archaic and results in widespread disparity,” Christensen said.
While the military has made strides in prosecuting sexual assault, it still has a ways to go in dealing with domestic violence within the ranks.
“Sexual assault is different from that, and there was cultural baggage that wasn’t necessarily there with domestic violence,” said VanLandingham, the former military lawyer, who now teaches law at Southwestern Law School. “I think domestic violence became more of an issue in the ’70s and ’80s, when there was more of an educational push both in the military and nonmilitary.”
In his time in the Air Force, Christensen said he witnessed “zero improvement” in how the force’s leadership viewed domestic violence, although he said there was marginal improvement in how sexual assault was tackled.
One glaring issue that has arisen from the Kelley case is how domestic violence is recorded under Uniform Code of Military Justice guidelines. Unlike sexual assault or rape, domestic violence is not listed as a standalone category; it’s folded under the broad umbrella “assault.” That makes tracking the number of domestic violence cases within the Air Force extremely difficult.
This week, Republican Sen. Jeff Flake of Arizona and Sen. Martin Heinrich, a New Mexico Democrat, introduced a bipartisan bill — the Domestic Violence Loophole Closure Act — to ultimately ensure all domestic violence convictions in military courts are properly recorded, and can be tracked.
The current military system makes it tough to track the incident rates of domestic violence in the Air Force, the legal spokesperson admitted. “There’s always ways of getting the data, but we have systems that [are] maybe more complicated than others.”
Some are now arguing for mandatory minimums for crimes of domestic violence by military servicemembers. A senior Democratic congressional aide, who spoke to VICE News on background, disclosed that sentencing guidelines for crimes of domestic violence and other violent crimes were originally proposed to be included in the National Defense Authorization Act bill last year but were taken out before the final bill was approved.
An Air Force senior legal spokesperson who spoke to VICE News on background citing ongoing investigations said juries are fully briefed on sentencing guidelines, and that military judges can’t increase sentences after they’re handed down (they can only reduce them). Ultimately, implementing mandatory minimums for domestic violence is a matter for Congress. Kelley’s appeal to have his sentence reduced was rejected, according to Air Force court martial documents.
Former military judge Joshua Kastenberg, who now works as a professor of law at the University of New Mexico, said regardless of what someone is sentenced to, mandatory reporting from a central form of authority should automatically inform the FBI that domestic violence happened and the person shouldn’t be able to access firearms consistent with the law.
“The Constitution protects rights of defendants — and that’s the way it needs to be,” said Kastenberg. “But I don’t think there’s full protection in place for victims yet.”