The boyfriend loophole refers to a perceived deficiency in American gun control legislation, that although individuals convicted of misdemeanor domestic violence or have court-ordered restraining orders against them are barred from obtaining firearms, the law does not apply if they did not marry, have a child with, or cohabitate with the intimate partner in question. As many as 24 states in the US have passed legislation which expands the definition to cover the situation where individuals were dating or formerly dating, but never had a child together or cohabitated. Federal legislation has been proposed but its passage has been unsuccessful.
- 1 Background
- 2 Connection between domestic abuse and stalking
- 3 Historical Development: The Lautenberg Amendment
- 4 States addressing the boyfriend loophole
- 5 History of Constitutional challenges
- 6 Surrendering of firearms
- 7 Public survey
- 8 See also
- 9 References
Section 922(d) of title 18 of the U.S. Code prohibits the sale or disposition of firearms to an individual convicted in any court of misdemeanor domestic violence. In addition, it is prohibited of individuals subject to a restraining order placed on them by an intimate partner or a child of the intimate partner, given that the prohibited individual had the opportunity to participate in the court hearing and the court finds that they represent a credible threat to the physical safety of the intimate partner or their child.
The term intimate partner is defined in section 921(a), paragraph (32):
The term “intimate partner” means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
And misdemeanor domestic violence is defined in (33):
an offense that—is a misdemeanor under Federal, State, or Tribal law; and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
The "boyfriend loophole" refers to the perception that these definitions are too restrictive. Bill H.R. 1585, The Violence Against Women Reauthorization Act of 2019, was passed by the House of Representatives in April 2019 and proponents have cited the bill as "closing the loophole". Among other provisions, the bill would expand the definition of "intimate partner" to include dating partners or former dating partners who have neither cohabitated nor had a child with the person obtaining a restraining order. Further, the bill would expand the definition of "misdemeanor domestic violence" to include intimate partners. The language "similarly situtated to a spouse" is considered by some courts and federal regulations to refer to a live-in dating partners, so the bill would solidify this concept and expand the definition to include dating partners who have not cohabitated.
The bill would also add a definition of the "misdemeanor crime of stalking" and bars individuals convicted of these crimes from owning or obtaining a firearm.
Research conducted by the Office of Justice Programs under the United States Department of Justice provided evidence that between 1980 and 2008, dating partners and domestic abuse have increased over time. This research claims that women were now equally as likely to be killed by their dating partners as by their spouses.
Similarly, the same federal law does not prohibit Americans convicted of misdemeanor stalking crimes from having guns. Research into homicides showed that stalking by intimate partners occurred around 76% of times before homicide and stalking occurred one year before 85% of attempted homicides occurred.
Connection between domestic abuse and stalking
Study conducted shows the connection between gun threats and stalking among partner abuse victims.The National Domestic violence hotline recorded data showing more than one in three callers report being threatened with a gun by their abuser, and more than three-fourths of those women report being stalked by their ex-partner.
An analysis of mass shootings conducted by advocacy group Everytown for Gun Safety from 2009 to 2017 showed that at least 54% of incidents in which four or more people are shot and killed (excluding the shooter) depicted that the perpetrator shot a current or former intimate partner or family member.
A survey conducted in 2011 by the advocacy group Everytown for Gun Safety showed that more than half of women killed with guns were murdered by family members or intimate partners. This was the case where guns existed in domestic violence homes and it was found that the risk for female homicide increased by an estimated 500 percent.
Historical Development: The Lautenberg Amendment
The primary legislation is the Gun Control Act of 1968 (CGA). This is the United States federal law that regulates the firearm owners and the firearm industry. There were two attempts to address the Gun control Act of 1968 (CGA). The first effort to address the GCA in order to sift out individuals who were under court protective orders from accessing firearms occurred in 1994. However, this provision did not restrict domestic violence abusers who continued to purchase guns for ownership. Thus, the second wave of amendment occurred to address this. It is commonly known as the Lautenberg Amendment.
The Lautenberg Amendment was proposed by Senator Frank Lautenberg, a Democrat from New Jersey. On March 21, 1996 the United States Senate passed this amendment and President Clinton signed this law four months later as a component of a federal omnibus spending bill. This law ensured that that Americans committing violent acts against their own family members would effectively lose their Second Amendment rights indefinitely. Despite two legislatures who voted against this legislation, the Senate voted almost unanimously. This law was an amendment to the existing felon-in-possession laws that forbade the possession or commercial sale of a firearm by convicted domestic violence abusers.
The amendment was intended to close an existing gap in the federal Gun Control Act of 1968 (GCA) directed towards domestic violence prosecutions, which were usually either charged as a misdemeanor or, as a result of a plea-bargain agreement was reduced from a felon to a misdemeanor. This was supported by testimony from National Coalition Against Domestic Violence and the National Network to End Domestic Violence. Senator Lautenberg in his address repeated what a previous speaker said in that this bill he proposed “stands for the simple proposition that if you beat your wife, you should not have a gun".
States addressing the boyfriend loophole
Addressing this loophole has been undertaken by 19 states and Washington DC. These states have adopted laws prohibiting abusive dating partners or boyfriends who have been convicted of domestic violent crimes from possessing guns. Furthermore, domestic violence restraining orders have been passed by 20 states and Washington DC. Laws prohibiting stalkers from possessing guns have similarly been addressed by 19 states. An analysis in the American Journal of Epidemiology shows the impact of these laws by the states show a 16 percent decrease in intimate partner homicide rates while a 13 percent decrease has also been experienced with intimate partner homicide rates.
States' proactive approach in combating domestic abusers from possessing guns and returning guns when convicted
Since 2013, 50 new laws have been passed with the objective of prohibiting guns from abusers by 28 states and Washington DC, however, 21 states have not prohibited abusers convicted of misdemeanor domestic violence crimes from obtaining and possessing guns.
History of Constitutional challenges
The right of a family to be free from violence has not been recognized by the Supreme Court, relying on the Fourteenth Amendment's Due Process Clause. Its position is that the clause does not impose duty upon states to protect persons from injury caused by other private individuals. This is position is seen in Deshaney v. Winnebago County Department of Social Services, where the courts held that "(a) State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause". The fourteenth amendment rights of a four-year-old child were not held to be violated after a near-fatal abuse caused by the failure of the state's child protection agency. The Court held that the Constitution does not impose an obligation for the government to provide help, “even when such aid may be necessary to secure life, liberty, or property interests of which government itself may not deprive the individual.
This notion was developed to encompass the area of intimate partner violence in the case of Town of Castle Rock v. Gonzales. The Supreme Court found that no constitutional responsibility was imposed by the Fourteen amendment’s procedural due process clause. In this case, failure by police to take action against Jessica Gonzales’ abusive husband who violated a protective order by kidnapping her children. The bodies of her children were found in the evening, despite her calling the police several times during the day and also attending the police station to report the matter. Her husband appeared at the Castle Rock police station also and was killed in a shootout. The Courts held that the Colorado officials’ actions (or inaction) did not violate Ms. Gonzales’ constitutional rights.
Both rulings in Deshaney v. Winnebago County Department of Social Services and Town of Castle Rock v. Gonzales show that constitutionally enshrined individual rights does not protect an individual from harm by abusers due to action (or inaction) by the government.  The implication is that Constitutional challenges brought by abusers claiming police action (inaction) directly resulting in abuse involving firearm from a boyfriend is likely to fail.
Surrendering of firearms
The issue of enforceability of the existing law to protect victims of abuse from stalkers and convicted domestic abusers highlights the complexity of separating guns from abusive users. When states utilize tools that allow for programs aimed at surrendering weapons and develop clear guidelines and protocols of how this is conducted, then survivors of abuse are safer. Rates of intimate partner homicides had shown to be reduced significantly when states restrict or limit access to guns. Research showed decreases across 47 states in family homicide rates as the gradual implementation of restrictions to firearms increased.
The nexus between gun surrendering programs is advocated to have effect in light of alarming rates of ex-spouse homicide victims. Ban placed on possession by Federal law upon domestic misdemeanor resulted in a decrease of 17 percent female homicides by intimate partners. Experts continue to stress that “evidence is clear: when a women is killed, it is most likely to be at the hands of an intimate partner with a gun". Report published by The United States Department of Justice showed that firearms were the cause of over two thirds of ex-spouse homicide victims over the period 1980 to 2008.
The boyfriend loophole discussion is relevant in the context of dating partners. Intimate partner homicides committed in 1980 carried out by dating partners was 27 percent. However, murders caused by dating partners almost equaled spouse related homicides. Legislation is necessary to close this loophole. The Zero Tolerance for domestic abuse Act served this purpose. The bill was introduced to Congress in January 15, 2019. The bill is to state that the term “intimate partner” will also include dating partner and other persons which state domestic or family law is obligated to provide protection.
Current negotiations for closing the boyfriend loophole continues to be a challenge in the House. For example, the Violence Against Women Act (VAWA) which was up for reauthorization earlier this year faced challenges in the process of extending it in April 2019. The Act does not make it mandatory for local governments and states to develop a procedure for domestic violence abusers to surrender their firearms. However, the essential element is that the programs provided under this Act continues to be funded.
The concerns raised in the House by Republicans concern the proposed lifetime ban on convicted misdemeanor charges on domestic abuse individuals and stalkers on firearm purchases. The National Rifle Association's (NRA) position is that this provision is an attempt to increase gun control by Democrats. The NRA is the largest gun lobby group in America and issued a “key vote” alert against the bill to members of the congress during the proceedings to warn that they may be scored and rated in NRA rating in which its members are voters consult.
Despite the challenges in the legislature to address the “boyfriend loophole” issue, the program of gun surrendering continues to act as a positive activity to reduce greater consequences of intimate partner abuse. This is noted in a 2017 research conducted by the Annals of internal Medicine which showed increase of gun surrender legislation directly reduced the rate of homicides from domestic violence.
Arguments against gun surrender laws include both legal and policy reasons. Researchers have noted that gun surrender laws cast a net that is too wide and that “every domestic violence misdemeanor would not necessarily misuse a firearm against a (current of former intimate partner) if permitted to possess one. Data also shows that females were “over 100 times more likely to be murdered by a man with a gun that to use it to kill a man in self-defense”. Safeguarding a home and personal defense are possible reasons why a survivor of domestic abuse may consider keeping her partners firearm in the house.
There seems to be public support for more legislation to be implemented by the states. Two national public surveys by GfK Knowledge Networks between the 2nd and 14 January 2013, applied equal probability sampling from a selected frame covering 97% of residential addresses in America. The aim of the survey was to find out the level of American support for gun restriction policies and was published in the New England Journal of Medicine (NEJM). The survey indicated that of the 31 gun policies proposed, only 4 were not supported. The same survey indicates that 62% National Rifle Association (NRA) members also support policies which include preventing individuals convicted of domestic violence from owning a gun for 10 years.
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