The boyfriend loophole is a gap in American gun legislation that allows physically abusive ex-romantic partners and stalkers with previous convictions or restraining orders to access guns. While individuals who have been convicted of, or are under a restraining order for, domestic violence are prohibited from owning a firearm, the prohibition only applies if the victim was the perpetrator's spouse or cohabitant, or if the perpetrator had a child with the victim.[1]
The boyfriend loophole was introduced in 1996 with the Lautenberg Amendment, which established stricter gun control restrictions in the United States in order to combat domestic abuse.[2] This law included a definition of an "intimate partner", who would be prohibited from accessing guns, but it did not encompass certain dating partners.[3]
Both before and after the introduction of the boyfriend loophole, there were attempts to increase governmental action in relation to domestic abuse, but they were unsuccessful, on constitutional grounds.[4]
More recently, researchers have found a positive correlation between intimate partner violence and firearm access.[5] Additionally, researchers have studied the overlap between instances of domestic abuse, stalking, and shootings.[6]
Although the boyfriend loophole has a direct effect on people who experience domestic abuse or stalking by former or current intimate partners, women disproportionately face intimate partner violence, so they are disproportionately impacted by the boyfriend loophole.[7][8]
Current legislation aimed at combating intimate partner violence includes the Violence Against Women Act, which was reauthorized on March 16, 2022, as well as the Bipartisan Safer Communities Act, which was signed into law on June 25, 2022.[9] This federal legislation significantly narrows the boyfriend loophole, denying access to firearms for five years to people convicted of violence in dating relationships. However, this restriction does not apply to those who only have restraining orders.[10]
The primary gun control legislation in the United States is the Gun Control Act of 1968 (CGA).[11] This is one of the United States federal laws that regulates firearm owners and the firearm industry. This provision, however, did not restrict alleged or convicted domestic violence abusers who continued to purchase guns for self-defense. Therefore, an amendment was introduced in 1996. This amendment is officially called the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence, but it is most commonly referred to as the "Lautenberg Amendment".[12]
The Lautenberg Amendment was proposed by Senator Frank Lautenberg, a Democrat from New Jersey. He had the intention of closing the existing gap in the federal GCA directed towards domestic violence prosecutions, which were usually either charged as misdemeanors or, as a result of plea-bargain agreements, were reduced from felonies to misdemeanors.[13] This law was an amendment to the existing felon-in-possession laws and forbade the possession or commercial sale of a firearm by all convicted domestic violence abusers.[3] This amendment banned those convicted of a misdemeanor crime of domestic violence from shipping, transporting, owning, or using guns.[12] Specifically, it prohibited this firearm access from anyone who used physical force or threatened to use a weapon against "a person with whom the victim shares a child in common…a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or…a person similarly situated to a spouse, parent, or guardian of the victim".[14] Therefore, the Lautenberg Amendment did not include restrictions for intimate dating partners. This gap is what created the boyfriend loophole.
Constitutional challenges to increase governmental action in response to domestic violence
Historically, some believed that domestic violence was a violation of the Fourteenth Amendment's Due Process Clause.[18] However, the Supreme Court rejected such arguments, instead stating that the clause does not impose duty upon states to protect people from injury caused by other private individuals.[19] This position was amplified in 1989 in Deshaney v. Winnebago County Department of Social Services, where the Court held that a "State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."[20] In the case, the Fourteenth Amendment rights of a 4-year-old child were not held to be violated after the child suffered near-fatal abuse that was alleged to have been partly the fault 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".[20]
This argument eventually developed to encompass the category of intimate partner violence in the 2005 case of Town of Castle Rock v. Gonzales, when Jessica Gonzales’s allegedly abusive husband violated his temporary restraining order and kidnapped their children.[4] Ms. Gonzales had called the police several times during the day to report the missing children, and she had visited the police station to report the matter in person, but the Castle Rock Police Department did not take action. Her husband later arrived at the Castle Rock police station and was killed in a shootout with the officers. Subsequently, Ms. Gonzales's children were found dead in Mr. Gonzales's truck. Ms. Gonzales sued the town of Castle Rock for violating her right to substantive and procedural due process, but based on precedent established in Deshaney v. Winnebago County Department of Social Services, the Supreme Court found that no constitutional responsibility was imposed by the Fourteenth Amendment’s procedural Due Process Clause.[4] Hence, the Court held that the Colorado officials’ actions 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 declared that constitutionally enshrined individual rights, such as the right to due process, do not protect an individual from the government's inaction in response to abusers' harm.[21] Therefore, the police's nonintervention in response to calls of domestic violence, or intimate partner violence, is not a violation of the Fourteenth Amendment.[22]
This being the case, the police or government's inaction in response to intimate dating partner abuse involving firearms is constitutional.[22] Hence, some believe that it is important to implement laws that prevent those who perpetrate intimate partner violence – including dating partners – from obtaining weapons, since there is no guarantee that victims will otherwise have government protection.[22]
Research on intimate partner violence and firearm access
There is a connection between intimate partner violence and firearm use for both dating partners and spouses.[23] There is not a significant difference between the number of murders caused by dating partners and by spouses.[24] For instance, in 1980, murders caused by dating partners almost equaled spousal homicides.[24] Moreover, according to data released in 2018, this continues to be the case.[23]
Additionally, reports published by The United States Department of Justice showed that firearms were involved in over two-thirds of ex-spouse homicide incidents over the period 1980 to 2008.[24] Moreover, in a panel study conducted from 1991 to 2015, researchers considered whether there was a relationship between state intimate partner violence-related firearm prohibitions and rates of intimate partner homicide in the United States.[5] They found that states with laws that restricted people with intimate partner violence-related restraining orders from obtaining firearms experienced lower intimate partner homicide rates, and specifically lower rates of intimate partner homicide from firearms. However, this was only the case in states that required those with intimate partner violence-related restraining orders to surrender their firearms.[5] Furthermore, the National Institutes of Health conducted a study in 2003 which found that a perpetrator's access to a gun led to a significant increase in risk of intimate partner violence.[25]
Moreover, the Preventative Medicine journal published research on whether intimate partner violence differs based on the type of relationship (spouse or significant other) and relationship status (current partner or former partner).[26] By studying cases of intimate partner violence that occurred in Philadelphia in 2013, researchers found that more than 80% of over 30,000 cases of intimate partner violence involved non-marital intimate partner relationships. In fact, compared to current spouses, current unmarried significant others were found to be most likely to exhibit violent behavior, although they were no more or less likely to use guns in those acts of violence than were spouses. Therefore, the researchers determined that unmarried partners posed an equal or greater risk of intimate partner violence, compared to married partners.[26]
Furthermore, the American Journal of Epidemiology published research on whether the strength of policies prohibiting domestic violence offenders from obtaining firearms is associated with intimate partner homicides.[27] The researchers found that the strength of these protections are significant only when they apply to current and former dating partners, rather than only current and former spouses.[27]
Connection between domestic abuse, stalking, and shootings
There are studies that show a connection between threats and stalking among partner abuse victims.[6] 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-quarters of domestic violence victims included in the study report being stalked by their ex-partner.[28]
Additionally, Everytown for Gun Safety conducted an analysis of mass shootings in the United States from 2009 to 2020. The data showed that in at least 53% of mass shootings, the perpetrator shot a current or former intimate partner or family member.[29] In fact, Everytown for Gun Safety reported that domestic-violence related mass shootings account for nearly half of mass shooting deaths in the United States.[29]
Gender and the boyfriend loophole
Despite its name, the loophole is not gender-specific. However, according to research conducted by advocacy group Everytown for Gun Safety, intimate partner violence disproportionately impacts women.[8] Moreover, women of color are disproportionately affected by intimate partner violence perpetuated specifically by men.[8]
The Violence Against Women Act
In 1994, two years before the introduction of the boyfriend loophole, the Violence Against Women Act (VAWA) was signed into law by President Bill Clinton. VAWA provides funding for federal investigation and prosecution of domestic violence, and incentivizes states to require the mandatory arrest of abusers.[30] VAWA was reauthorized in 2000, 2005, and 2013, and each reauthorization strengthened its protections.[31] However, in 2018, VAWA lapsed under President Donald Trump.
During his candidacy, President Trump was endorsed by the National Rifle Association (NRA), which is the oldest firearm advocacy group in the United States.[32] According to NRA spokeswoman Jennifer Baker, VAWA is "too broad and ripe for abuse".[33] During the 2019 proceedings when Democrats tried to reintroduce VAWA, the NRA issued an alert to members of Congress against its reauthorization.[33] While the Democratic House of Representatives reauthorized VAWA, the Republican-controlled Senate did not allow it to pass because they had concerns about the provision that would make it more difficult to obtain a firearm for people convicted of a violent crime or subject to a restraining order.[34]
In 2022, there was a Democrat-led movement to close the boyfriend loophole in the reauthorization of VAWA under President Joe Biden. However, according to the NRA, the boyfriend loophole is simply an attempt to increase gun control by Democrats.[35] Hence, Republicans would not agree to passing VAWA if the boyfriend loophole was closed, since they did not want to narrow access to guns.[36] In order to reauthorize VAWA, Democrats limited the scope of the bill.[36]
President Joe Biden speaks after signing the Violence Against Women Reauthorization Act of 2022 on March 16, 2022.
The Zero Tolerance for Domestic Abuse Act was introduced to Congress on January 15, 2019.[38] The stated aim of the bill was to define the term “intimate partner” to include dating partners and other people for whom state domestic violence laws or family law is obligated to provide protection.[38] This bill would partially close the boyfriend loophole, but it has not yet passed.
President Joe Biden signs the Bipartisan Safer Communities Act on June 25, 2022.
Additionally, S. 2938, the Bipartisan Safer Communities Act, was passed by Congress and signed into law by President Biden in June 2022.[9] It passed the Senate in a 65–33 vote with 15 Republican senators joining all 50 Democrats in support for the bill and was approved by the House of Representatives in a 234–193 vote with 14 House Republicans joining all 220 Democrats.[39] The Act has significantly narrowed, but not completely closed, the boyfriend loophole. Under the new law, someone convicted of a violent crime against someone with whom they currently are, or previously were, in a dating relationship, is barred from having firearms.[10] The length, nature, and types of interactions of the relationship are used to determine whether it is a dating relationship for the purposes of the Act.[10] The wider provisions, however, expire after five years and never extend to dating partners subject to a restraining order but not convicted of a violent crime.[40]
The Domestic Violence Offender Gun Ban, often called the "Lautenberg Amendment", is an amendment to the Omnibus Consolidated Appropriations Act of 1997, enacted by the 104th United States Congress in 1996, which bans access to firearms for life by people convicted of crimes of domestic violence. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg (D-NJ). Lautenberg proposed the amendment after a decision from the United States Court of Appeals for the Ninth Circuit, involving underenforcement of domestic violence laws brought under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. President Bill Clinton signed the law as part of the Omnibus Appropriations Act of 1997.
A restraining order or protective order is an order used by a court to protect a person in a situation often involving alleged domestic violence, child abuse, assault, harassment, stalking, or sexual assault.
Femicide or feminicide is a term for the murdering of females, often because of their gender. In 1976, the feminist author Diana E. H. Russell first implicitly defined the term as a hate killing of females by males but then went on to redefine it as "the killing of females by males because they are female" in later years. Femicide can be perpetrated by either sex but is more often committed by men. This is most likely due to unequal power between men and women as well as harmful gender roles, stereotypes, or social norms.
The Firearm Owners' Protection Act (FOPA) of 1986 is a United States federal law that revised many provisions of the Gun Control Act of 1968.
The Violence Against Women Act of 1994 (VAWA) is a United States federal law signed by President Bill Clinton on September13, 1994. The Act provided $1.6billion toward investigation and the prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress when prosecutors chose not to prosecute cases. The Act also established the Office on Violence Against Women within the U.S. Department of Justice.
The United States Office on Violence Against Women (OVW) was created following the Violence Against Women Act (VAWA) of 1994. The Act was renewed in 2005, 2013 and again in 2022. The Violence Against Women Act legislation requires the Office on Violence Against Women to work to respond to and reduce violence against women in many different areas, including on college campuses and in people's homes. VAWA requires Office on Violence Against Women to administer justice and strengthen services for victims of domestic violence, dating violence, sexual assault, and stalking.
In the United States, the right to keep and bear arms is modulated by a variety of state and federal statutes. These laws generally regulate the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories. They are enforced by state, local and the federal agencies which include the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Murder of pregnant women is a type of homicide, often resulting from domestic violence. Domestic violence—or intimate partner violence (IPV)—is suffered by many, and when analyzing cases in which victims came forward, men are more likely than women to commit acts of severe domestic battery, and women are more likely to suffer serious injury as a result. Many of these women fear harm not just to themselves but also to their unborn children. Recently, more focus has been placed on pregnancy-associated deaths due to violence. IPV may begin when the victim becomes pregnant. Research has shown that abuse while pregnant is a red flag for pregnancy-associated homicide.
The National Network to End Domestic Violence(NNEDV) is a 501(c)(3) not-for-profit organization founded in 1990, based in the District of Columbia. It is a network of state and territorial domestic violence coalitions, representing over 2,000 member organizations throughout the US. The National Network to End Domestic Violence works to address the many aspects of domestic violence.
Legal Momentum, founded in 1970, is a 501(c)(3) nonprofit and the nation's first and longest-serving legal advocacy group for women in the United States. Betty Friedan and Muriel Fox were its co-founders and Muriel Fox is an ongoing leader of the organization. Carol Baldwin Moody became President and CEO in April 2018. The organization, founded as the NOW Legal Defense and Education Fund, became Legal Momentum in 2004. Legal Momentum is a multi-issue organization dedicated to advancing women’s rights and gender equality, particularly in the areas of equal education opportunities; fairness in the courts; ending all forms of gender-based violence; workplace equality and economic empowerment. The organization employs three main strategies: impact litigation, policy advocacy, and educational initiatives. It is headquartered in New York City.
Domestic violence is a form of violence that occurs within a domestic relationship. Although domestic violence often occurs between partners in the context of an intimate relationship, it may also describe other household violence, such as violence against a child, by a child against a parent or violence between siblings in the same household. In the United States, it is recognized as an important social problem by governmental and non-governmental agencies, and various Violence Against Women Acts have been passed by the US Congress in an attempt to stem this tide.
The following outline is provided as an overview of and topical guide to domestic violence:
Domestic violence against men is violence or other physical abuse towards men in a domestic setting, such as in marriage or cohabitation. As with domestic violence against women, violence against men may constitute a crime, but laws vary between jurisdictions. Intimate partner violence (IPV) against men is generally less recognized by society than intimate partner violence against women, which can act as a further block to men reporting their situation or otherwise seeking help.
A Domestic Abuse Restraining Order (DARO) is a form of restraining order or order of protection used under the domestic abuse laws of the state of Wisconsin, USA, and enforceable throughout the US under invocation of the Full Faith and Credit Clause in the Violence Against Women Act. It is a legal intervention in which one person who is deemed to be hurting, threatening or stalking another person is ordered to stop — and often cease all direct and indirect contact — with the goal of reducing risk of further threat or harm to the petitioner. The petitioner and respondent will generally be in certain specific relationships such as a spousal or sexual relationship. If the petitioner is in an unwanted stalking relationship with the respondent, however, a closely related form of injunction, a Harassment Restraining Order (HRO) may be more appropriate.
The Concealed Carry Reciprocity Act, or House Bill 38, is a bill that would amend Title 18 of the United States Code to require all U.S. states to recognize concealed carry permits granted by other states. It would also allow the concealed transport of handguns across state lines, so long as it is allowed by both states and would amend the Gun-Free School Zones Act of 1990 to allow permit holders to carry a concealed weapon in school zones in any state.
Violence against women in the United States is the use of domestic abuse, murder, sex-trafficking, rape and assault against women in the United States. It has been recognized as a public health concern. Culture in the United States has led towards the trivialization of violence towards women, with media in the United States possibly contributing to making women-directed violence appear unimportant to the public.
Clare's Law, often known officially as a Domestic Violence Disclosure Scheme or similar, designates several ways for police officers to disclose a person's history of abusive behaviour to those who may be at risk from such behaviour. It is intended to reduce intimate partner violence. Clare's Law is named after Clare Wood, a woman murdered in England by a former domestic partner who police knew to be dangerous.
The Bipartisan Safer Communities Act is a United States federal law, passed during the 117th United States Congress. It implemented several changes to the mental health system, school safety programs, and gun control laws. Gun control laws in the bill include extended background checks for firearm purchasers under the age of 21, clarification of Federal Firearms License requirements, funding for state red flag laws and other crisis intervention programs, further criminalization of arms trafficking and straw purchases, and partial closure of the gun show loophole and boyfriend loophole. It was the first federal gun control legislation enacted in 28 years.
United States v. Rahimi, 602 U.S. ___ (2024), was a United States Supreme Court case regarding the Second Amendment to the United States Constitution and whether it empowers the government to prohibit firearm possession by a person with a civil domestic violence restraining order in the absence of a corresponding criminal domestic violence conviction or charge.
Officer Involved Domestic Violence (OIDV) refers to domestic violence or intimate partner violence committed by law enforcement officers against their marital or intimate partners, children, and cohabitating and non-cohabitating family members. OIDV is characterized as "physical, sexual, emotional, economic, psychological, technological actions, and/or threats of actions or other patterns of coercive behavior that influence another person" including "any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone" with whom the officer has a intimate or familial relationship with.
↑ “The National Intimate Partner and Sexual Violence Survey (NISVS): 2015 Data Brief—Updated Release;” Emma E. Friedland and James Alan Fox, "Gender Differences in Patterns and Trends in US Homicide, 1976–2017", Violence and Gender 6, no. 1 (2019): 27–36, doi:10.1089/vio.2019.0005
↑ 104th Congress (September 30, 1996). "Public Law 104-208"(PDF). Authenticated U.S. Government Information. Archived(PDF) from the original on May 3, 2023. Retrieved May 3, 2023.{{cite web}}: CS1 maint: numeric names: authors list (link)
↑ Franzblau, S. H., Echevarria, S., Smith, M., & Van Cantfort, T. E. (2008). A preliminary investigation of the effects of giving testimony and learning yogic breathing techniques on battered women's feelings of depression. Journal of interpersonal violence, 23(12), 1800–1808. doi:10.1177/0886260508314329
↑ "The Hon. Donna F. Edwards". Brennan Center for Justice. Retrieved June 1, 2019.
↑ "14th Amendment". LII / Legal Information Institute. Archived from the original on June 1, 2019. Retrieved May 1, 2023.
↑ Eppler, Amy. “Battered Women and the Equal Protection Clause: Will the Constitution Help Them When the Police Won’t?” The Yale Law Journal, vol. 95, no. 4, 1986, pp. 788–809. doi:10.2307/796453 Accessed 1 May 2023.
↑ Campbell, Jacquelyn C et al. "Risk factors for femicide in abusive relationships: results from a multisite case control study". American Journal of Public Health vol. 93,7 (2003): 1089-97. doi:10.2105/ajph.93.7.1089. PMC1447915
1 2 April M Zeoli, Alexander McCourt, Shani Buggs, Shannon Frattaroli, David Lilley, Daniel W Webster, Analysis of the Strength of Legal Firearms Restrictions for Perpetrators of Domestic Violence and Their Associations With Intimate Partner Homicide, American Journal of Epidemiology, Volume 187, Issue 11, November 2018, Pages 2365–2371, doi:10.1093/aje/kwy174
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