A Statutory Tool to Address Severe Familial Violence: Domestic Violence, Torture, and Mass Shootings


Law enforcement officials investigate the scene of a shooting at the First Baptist Church of Sutherland Springs, Texas.
Eric Gay/AP


Devin P. Kelly a 26-year-old Texan opened fire at a Sunday Service at the First Baptist Church in Sutherland Springs.  Kelly killed at least 26 people their ages range from 18 months to 77 years old.  Law enforcement describes the incident as a “domestic situation” targeting his mother-in-law.  In the Southerland Springs shooting, 12 of the victims were also children.

Most mass shootings in the U.S. are related to domestic or family violence. In at least 54 percent of mass shootings from 1999-2017, the perpetrator shot a current or former intimate partner or family member. More than 40 percent of the victims were children. Most of these cases ended with the perpetrators killing themselves.[1]

Not until 1984, when the landmark case Thurman v. The City of Torrington[2] recognized that police had a legal responsibility to respond to and protect victims of domestic violence,[3] did the criminal justice system begin to prosecute domestic violence.  Prosecuting domestic violence is difficult. Evidence suggests that 80–85% of battered women will dispute that abuse occurred at some point.[4] A victim who telephones the police in immediate fear for her life will likely later recant her statement due to control and manipulation tactics used by the abuser.[5]

The current statutes used to prosecute domestic violence further complicate these cases.  Codified state laws only address family violence by a single transaction or instance – i.e., a single instance of strangulation, a single instance of assault, or battery.[6]  However, intimate partner violence is not limited to a single act of assault or battery, but instead is a coercive pattern of one partner’s physical violence, intimidation, and control of the other partner that often leads to homicide.[7]

In 2009, after graduating high school in New Braunfels, Kelly enlisted in the U.S. Air Force.  In April of 2011, he married Tessa Kelley.  According to the General Court Marshall Order, Kelly on or about June 24, 2011 and April 27, 2012 hit his wife, strangled, kicked her least once, threatened her with a loaded gun numerous times, and struck his two-year-old stepson with enough force to cause a skull fracture.

Military prosecutors charged Kelly with five counts of assault under the Uniform Code of Military Justice Article 128.[8]  Rather than go forward with the trial, he pled guilty to two out of the five counts.   The Court’s sentenced reduced Kelly’s rank to E-1, provided a bad-conduct discharge usually reserved for misdemeanors and confinement for 12 months.[9]  The Court sentenced Kelly for two abusive acts which most likely was only two of hundreds in the course of the relationship.

From what we know about domestic violence, it is a coercive pattern of one partner’s physical violence, intimidation, and control of the other partner that often leads to homicide. Two states: California and Michigan have laws that address the arch of intense violence in the most heinous of domestic violence relationships.[10]

Both state laws do not address a single instance of physical assault but instead, focus on the “cruel or extreme pain and suffering” caused by the perpetrator.  The Michigan law was passed after the California law and improves upon it.  The Michigan torture law states, “ A person who, with the intent to cause cruel or extreme physical or mental pain and suffering, inflicts great bodily injury or severe mental pain or suffering upon another person within his or her custody or physical control[11] commits torture and is guilty of a felony punishable by imprisonment for life or any term of years.”

If Kelly had been prosecuted under the Michigan Torture, the likelihood is high he still would be in jail and not have committed mass murder.  In cases where domestic violence against a family member is the canary in the coal mine, prosecutors should have the charging tools to prevent future violence against family members and the public at large.   Only California and Michigan have laws that criminalize the torture of adults.   Legislators should provide prosecutors the tools to address domestic violence as the serious problem and potentially not only protect the lives of family members, but also the public at large.

By.  A. Ann Ratnayake, JD/BBA

[1] Everytown for Gun Safety, Mass Shootings In The United States 1999-2017, 3 (2017), https://everytownresearch.org/wp-content/uploads/2017/04/Analysis_of_Mass_Shooting_062117.pdf; See also J. Reid Melo Ph.D et al., A Comparative Analysis of North American Adolescent and Adult Mass Murderers, 22 J. Behav. Sci. Law, 291, 296  (2004), http://drreidmeloy.com/wp-content/uploads/2015/12/2004_AComparativeAna.pdf

         [2]   Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984).

         [3]   Id. at 1528.

         [4]   Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 768 (2005).

         [5]   Id.

         [6]   Eg. 21 OK Stat § 21-644 (2014)

         [7]   Shannan Catalano, et al., U.S. Dep’t of Justice, Female Victims of Violence 2 (2009) (“In 2007 intimate partners committed 14% of all homicides in the U.S. The total estimated number of intimate partner homicide victims in 2007 was 2,340, including 1,640 females and 700 males.”); Tim Donaldson & Karen Olson, “Classic Abusive Relationships” and the Inference of Witness Tampering in Family Violence Cases After Giles v. California, 36 Lincoln L. Rev. 45, 81 (2008) (citing Joan B. Kelly & Michael P. Johnson, Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions, 46 Fam Ct. Rev. 476, 478 (2008); see also Amy Holtzworth-Munroe & Gregory L. Stuart, Typologies of Male Batterers: Three Subtypes and the Differences Among Them, 116 Psychol. Bull. 476, 477–94 (1994)).

[8] Dep’t  Air Force Headquarters: Davis Monthan-Airforce Base Arizona, General Court-Marshall Order No. 10 Jan. 14, 2013, https://twitter.com/JimDalrympleII/status/927705380678918144

[9] U.S. v.  Devin P. Kelly, ACM 38263 (A.F. Ct. Crim. App. filed Dec.3, 2013),  https://www.scribd.com/document/363693392/Court-document-showing-Sutherland-Springs-shooting-suspect-had-bad-conduct-discharge#from_embed

[10] Cal. Penal Code § 206 (2016); Torture; Mich. Comp. Laws Serv. § 750.85 (2016). Torture; felony; penalty; definitions; element of crime; other laws.

[11] See People v. Studier, No. 317351, slip op. (Mich. Ct. App. 2015), https://scholar.google.com/scholar_case?case=17117557453317897301&q=%22forcible+restriction%22++and+threat&hl=en&as_sdt=20006&as_vis=1 (The Court found a victim of Domestic Violence afraid to leave the premises due to death threats made by the perpetrator to be forcibly restrained).

[12] Torture; Mich. Comp. Laws Serv. § 750.85 (2016). Torture; felony; penalty; definitions; element of crime; other laws.

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