Much work needs to be done to address sexual assault in the military
This post was originally published on this site
Content warning: This story contains graphic descriptions of sexual assault.
While we all know by now that mass shootings are almost always preventable, it’s not often that you can get a court to formally declare this is the case. That’s what happened last summer, when a federal judge held the Air Force responsible for a deadly mass shooting at First Baptist Church of Sutherland Springs, Texas, in November 2017.
Five years earlier, the gunman, Devin Kelley, had pleaded guilty at a court-martial to physically and sexually assaulting his then-wife and cracking his stepson’s skull. If the Air Force had reported this plea to law enforcement outside the military, Kelley would have never been allowed to legally buy the AR-15 clone that he used to kill 26 people and wound 22 others before turning the gun on himself at the church.
The bill finally came due for that catastrophic failure on Feb. 7, 2022, when the Air Force was ordered to pay $230 million to the victims and their survivors of the Sutherland Springs massacre. And this isn’t the first time the military has been sued: New York City, San Francisco, and Philadelphia sued the Pentagon in 2017 in hopes of forcing fixes to “deadly gaps” in the system that allowed former service members to get guns when they should have been legally barred from getting them.
But while the Air Force has justifiably been pilloried for failing to report Kelley’s guilty plea, no serious inquiry has been made into an even more fundamental question: How was Kelley even on the streets in the first place?
In return for his guilty plea, he only served one year in the stockade and received a bad conduct discharge. Unlike in the civilian system, there are no sentencing guidelines in the military justice system—which means there is no way to ensure that sentences are credible. Even allowing for this, the fact that it was even possible for him to get such a short sentence shows that the military has a large blind spot about domestic violence and sexual assault.
Much ink has been spilled over the years about how this tragedy could have been avoided had the Air Force reported Kelley’s plea to the National Instant Criminal Background Check System—an error that the Air Force admitted within 24 hours of the shooting. A domestic violence conviction, even if it’s only a misdemeanor, automatically bars you from buying, owning, or possessing guns. Indeed, this shooting is a textbook reason why that ban is in place.
But there were other grounds for keeping Kelley from getting a gun besides his plea to domestic violence. Kelley was originally hauled before a general court-martial, the highest level of court-martial in the American military justice system, on charges of assaulting his then-wife Tessa, aggravated assault on his stepson, pointing a loaded gun at Tessa, and threatening her with an unloaded gun. Under the Manual for Courts-Martial, Kelley faced up to 19 years in the stockade and a dishonorable discharge. However, his guilty plea inexplicably only exposed him to a maximum of eight years. Even that light sentence should have taken away his right to buy a gun. Federal law disqualifies you from buying a gun if you’re convicted of a crime for which the maximum sentence is longer than a year.
Jacob Sullum of Reason noted that since Kelley’s bad conduct discharge was handed down by a general court-martial, that should have been enough in and of itself to bar him from buying a gun. I asked Sullum for clarification soon after the shooting via email, and he noted that the Bureau of Alcohol, Tobacco, Firearms and Explosives considers any discharge handed down by a general court-martial to have taken place “under dishonorable conditions”—with no distinction between a bad conduct discharge and a dishonorable discharge.
The standard form that records gun purchases confirms this sweeping interpretation; it states that if you’re convicted at a general court-martial, you must answer “yes” to the question about felony convictions. This makes sense, since convictions by a general court-martial have long been treated as the equivalent of felony convictions at the civilian level. Had Kelley’s bad-conduct discharge been properly recorded, he would not have been allowed to buy that gun even if he had lied about not having the equivalent of a felony conviction.
But in the absence of something I haven’t heard or seen, no one has asked how Kelley only got a year in the stockade. Those questions became even louder after Tessa, now known as Tessa Brennaman, told her story to Inside Edition.
Brennaman revealed that her marriage to Kelley had seen a litany of abuse—punching, kicking, choking, and sexual assault. Her son wasn’t spared either; Kelley cracked his skull after repeatedly hitting him in the head.
Simply put, a year in the stockade doesn’t fit any definition of a credible sentence for such ghastly and barbaric behavior. Indeed, it doesn’t even qualify as a phrase. There aren’t many civilian jurisdictions in this country where a prosecutor or judge could let such a deal go through. The few jurisdictions where such a plea deal would be acceptable likely have had their collective heads up their collective asses for a long time.
When Don Christensen, the former chief prosecutor of the Air Force, learned about the Kelley case, he came to a similar conclusion. In a colossal understatement, he told The New York Times that “a serious assault to a child is worth more than a year of confinement.” In his experience as a military prosecutor, he’d seen soldiers get only a year in the stockade for abusing cough medicine. Later, he told The Washington Post that Kelley fell through the cracks of “an archaic, ineffective sentencing system” that frequently results in violent offenders getting much lighter sentences than would be the case in civilian courts. Christensen is currently working to change that system as president of Protect Our Defenders, which advocates for victims of domestic violence and sexual assault in the military.
There are other organizations working to fight this scourge. The Service Women’s Action Network, a network of current and former female service members, has put together a handy “Survivor’s Guide” for sexual assault victims to help them navigate the road to healing. The Department of Defense has contracted the Rape, Abuse & Incest National Network to operate an anonymous 24-7 hotline for service members impacted by sexual assault. The Department of Veterans Affairs also operates a support hotline, and has run a campaign called “Make the Connection” aimed at connecting veterans who have been through this ordeal. While this is all well and good, it still has to confront a culture that often leads to the victims being punished.
Take the story of Terri Odom, who was working as an irrigation specialist at a naval construction battalion in Sicily in 1986 when she was brutally raped and tortured by a fellow non-commissioned officer. When her commander dismissed her claims, she attempted suicide. She got pregnant as a result of the rape, and her chain of command pressured her to end the pregnancy if she wanted to stay in the Navy. She was still scarred by the ordeal, and was honorably discharged in 1987. She attempted suicide at least 100 times from 1986 to 2011.
Sadly, little seems to have changed since then. And apparently that’s still the case even with overwhelming evidence. Darchelle told Protect Our Defenders that she learned this the hard way while serving as an Air Force aviation commander.
While she was stationed in Italy, one of her colleagues barged into her locked room and raped her. Despite overwhelming evidence of his debauchery, he was acquitted because—wait for it—he believed he had consent. Darchelle was forced out of the Air Force soon afterward, despite a glowing evaluation.
Men have endured similarly brutal assaults as well. Take “Heath,” who told Protect Our Defenders how he was repeatedly sexually assaulted soon after getting out of naval boot camp in the late 1980s.
Heath complained to his superiors—and from there, his life on the ship “turned to hell.” The physical and sexual assaults continued for over a month, leading his family—made up mostly of Army veterans—to advise him to go AWOL and come back home to upstate New York for his own safety. His then-Congress member, Sherwood Boehlert, promised to personally investigate the matter. Despite this, he got word that the police were looking for him, forcing him to live on the streets until he was arrested and ultimately sent back to his ship.
By this time, he was a “basketcase” mentally. The assault actually got even worse after he returned, and it eventually got to the point where “I just could not do it” anymore. While it had been his dream to make a career in the Navy, he was so broken that he was willing to “sign a death certificate” in order to get out. He ultimately reached a plea deal that allowed him to get out with an other-than-honorable discharge, which made getting help for his PTSD difficult. While he admits going AWOL, he says that he doesn’t know “anybody in their right state of mind” who wouldn’t have done the same.
Stories like these are what led veteran political consultant Nancy Parrish to found Protect Our Defenders in 2011. Her team, augmented by people like Christensen who have a deep knowledge of the military justice system, provides pro bono legal representation for victims. Protect Our Defenders also engages policymakers to push for changes in policy and culture.
Despite this, it took another tragedy for real change to finally move forward. In April 2020, Vanessa Guillen, a small-arms repairer at Fort Hood, needed confirmation for some serial numbers and sought it from the armory controlled by combat engineer Aaron Robinson. She was never seen again. It turned out that just before her murder, Guillen had told her family that one of her sergeants was sexually harassing her. Guillen’s mother wanted to report it, but Guillen feared it would bring her mother reprisals.
Robinson was a person of interest from the beginning, as he was the last person known to have seen Guillen alive. Two months later, on June 30, human remains were found along the Leon River in nearby Belton. That night, Robinson’s girlfriend, Cindy Aguilar, told police that Robinson had told her that he’d repeatedly bludgeoned a female soldier to death with a hammer inside his Fort Hood armory on the night of April 22.
Aguilar later helped Robinson dismember and burn Guillen’s remains. Around the same time, Robinson was detained on base, but escaped and later shot himself when confronted by police in nearby Killeen. Five days later, the remains were confirmed to be those of Guillen. Aguilar is currently facing charges related to her role in the cover-up.
By then, a debate was already underway about reforming how the military handles sexual assault. Legislation was pending in Congress that would take decisions on whether to court-martial soldiers for major felonies out of the hands of the chain of command. However, it seemingly stalled until Guillen’s murder.
In December, Congress enacted these reforms as part of the National Defense Authorization Act for Fiscal 2022. New procedures explicitly criminalize sexual harassment in the military for the first time. Commanders are now required to forward complaints about sexual assault, sexual harassment, murder, rape, domestic violence, manslaughter, and other serious crimes to an independent investigator. Decisions on whether to prosecute will be made by Offices of the Special Trial Counsel, one for each of the four military branches. The reforms give victims the right to know whether an offender has been administratively sanctioned, require the Pentagon to track retaliation against those filing complaints, and mandate a review of racial disparities in the military justice system.
The reforms didn’t go far enough for Sen. Kirsten Gillibrand of New York, who has spent most of her career advocating for reform of the military justice system. She voted against the bill because it didn’t take the chain of command out of the picture altogether in cases of sexual assault and sexual harassment. Sen. Richard Blumenthal of Connecticut also objected to provisions that left broad authority in the hands of commanders.
In an editorial, the San Antonio Express-News—whose coverage area includes Lackland Air Force Base, home to Air Force basic training—echoed Gillibrand’s and Blumenthal’s concerns. The editorial noted that the bill allows commanders to retain broad control over the court-martial process, including the ability to select jury pools. Christensen told the editorial board that this power has been “a blemish on military justice” for a long time, since the person who decides whether to try the case also picks the jury—from people who take orders from him. Hopefully Congress can summon the will to make these changes at some point.
Another needed change would be to establish mandatory minimum sentences for sex-related crimes. Whatever reservations we may sometimes have about mandatory minimums, there are some cases where they are necessary. This is one of them.
We’ve heard time and again that victims, both in the civilian and military worlds, don’t come forward for years if at all in part because they don’t feel it will be worth the effort. Setting mandatory minimums would go a long way toward correcting this. It would not only send a message that victims are being taken seriously, but allow them to heal. Had Kelley, for instance, faced a mandatory minimum sentence of five years for what he did to Tessa and his stepson, Tessa would likely be further along in her healing. It’s equally likely that 26 people would have walked out of that church alive, since any credible sentence would have made it all but impossible for Kelley to get a gun.
Protect Our Defenders argues—and rightly—that our men and women in uniform deserve “a system of justice worthy of the American principles they have dedicated their lives to protect.” While much has been done to accomplish this, it was several years overdue—and much more work needs to be done.