Keeping Firearms Out of Dangerous Hands: Closing the Boyfriend Loophole

I. Introduction

In the wake of more tragic mass shootings this summer, gun control is once again at the forefront of American politics and the subject of debate. On June 25, 2022, Congress enacted the Bipartisan Safer Communities Act (“the Act”) in hopes to address parts of the problem.¹Bipartisan Safer Communities Act, S. 2938, 117th Cong. The Act addresses multiple gun control and mental health issues including: improving the federal background check system of juvenile records, clarifying the definition for a federally licensed firearms dealer, creating criminal penalties for straw purchases and gun trafficking, providing $750 million for states to create crisis intervention programs, improving mental health services for children and families, and closing the boyfriend loophole.²Melissa Quinn, What’s in the Bipartisan Gun Bill Unveiled in the Senate, CBS (June 22, 2022), https://www.cbsnews.com/news/bipartisan-gun-control-bill-senate-whats-in-it/. Each issue addressed in the bill is important. According to U.S. Secretary of Education, Miguel Cardona, “The [bill] is an important step toward addressing years of inaction and indifference in response to heartbreaking gun violence in our schools and communities.”³U.S. Department of Education, Statement from U.S. Secretary of Education Miguel Cardona on the Bipartisan Safer Communities Act (July 11, 2022), https://www.ed.gov/news/press-releases/statement-us-secretary-education-miguel-cardona-bipartisan-safer-communities-act.

While the bill contains many important provisions, this article will focus on the lifesaving impact of closing the boyfriend loophole in federal firearm law. According to federal law, it is unlawful for any person to sell a firearm to a person that has been convicted of a misdemeanor of domestic violence.⁴18 U.S.C. § 922(d)(9). Prior to the enactment of this bill, federal law only defined a misdemeanor of domestic violence as applying to people who are married to, living with, or have a child with the victim.⁵Rachel Treisman, The Senate Gun Bill Would Close the ‘Boyfriend Loophole.’ Here’s What That Means, Nat’l Pub. Radio (June 23, 2022), https://www.npr.org/2022/06/23/1106967037/boyfriend-loophole-senate-bipartisan-gun-safety-bill-domestic-abuse. See 18 U.S.C. 922(d)(9). As a result, a person convicted of a misdemeanor of domestic violence and not married to, living with, or had a child with the victim was not federally restricted from purchasing a firearm. That traditionally meant that the casual boyfriend was not included in the definition, thus creating the boyfriend loophole. The Act essentially closes the boyfriend loophole and prevents convicted domestic abusers who abused their current or recent dating partners from buying or possessing guns.⁶Tony Gonzales, Opinion: We Passed the Bipartisan Safer Communities Act for the 21 Uvalde Victims – and the People Mourning Their Loss, CNN (June 25, 2022), https://www.cnn.com/2022/06/25/opinions/bipartisan-gun-safety-bill-uvalde-gonzales/index.html.

II. Background

Federal law and thirty-one states currently prevent persons convicted of a misdemeanor of domestic violence from owning or purchasing firearms.⁷Which State Prohibit Convicted Domestic Abusers from Having Guns?, Everytown (2022), https://everytownresearch.org/rankings/law/prohibition-for-convicted-domestic-abusers/. Prior to the Act, multiple states already had laws closing the boyfriend loophole.⁸Id. However, nineteen states have failed to adopt any policy prohibiting domestic violence abusers from purchasing firearms.⁹Id. For example, states such as Ohio, Kentucky, and Michigan have no such policy.¹⁰Id. In contrast, in Indiana it is a Class A misdemeanor for a person convicted of domestic battery to knowingly or intentionally possess a firearm.¹¹Ind. Code § 35-47-4-6. Before discussing firearm rights, it is important to understand how laws define a misdemeanor of domestic violence.

A. Definitions for a Misdemeanor of Domestic Violence

Prior to the Act, federal firearm law defined a misdemeanor of domestic violence for the purpose of firearm ownership as the following:

(i) is a misdemeanor under Federal, State, Tribal, or local law; and

(ii) 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.¹²18 U.S.C. § 921(a)(33)(A)(i)(ii).

Many states have similar language to define what is deemed a misdemeanor of domestic violence. In Ohio, it is a misdemeanor of the first degree to knowingly cause or attempt to cause physical harm to a family or household member.¹³Ohio Rev. Code § 2919.25 (emphasis added). The statute defines a “family or household member” as any the following:

(1) “Family or household member” means any of the following:

(a) Any of the following who is residing or has resided with the offender:

(i) A spouse, a person living as a spouse, or a former spouse of the offender;

(ii) A parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender;

(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender¹⁴Ohio Rev. Code § 2919.25(F)(1).

Notably absent from both definitions is the mention of persons in a dating relationship. The Act changed the federal definition for a misdemeanor of domestic violence for firearm possession purposes. However, many states, like Ohio, have domestic violence statutes that do not include persons in dating relationships. Therefore, a person in Ohio who commits an act of violence against a person in a dating relationship, absent other factors, may not be convicted of domestic violence in the first place.

B. Bipartisan Safer Communities Act Language and 18 U.S.C. § 921

The Act added to the previous definition for a misdemeanor of domestic violence. The Act added an additional phrase to the end of the definition, “or by a person who has a current or recent former dating relationship with the victim.”¹⁵Bipartisan Safer Communities Act, S. 2938, 117th Cong.; 18 U.S.C. 921(a)(33)(A)(i)(ii). Additionally, the Act provided a definition for dating relationship.¹⁶Id. The term dating relationship means the following: “a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.”¹⁷18 U.S.C. § 921(a)(37)(A). The Act further includes three factors to determine what constitutes a dating relationship: (1) the length of the relationship, (2) the nature of the relationship, and (3) the frequency and type of interaction between the individuals involved in the relationship.¹⁸18 U.S.C. § 921(a)(37)(B). Lastly, a casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship.¹⁹18 U.S.C. § 921(a)(37)(C).

After adding to the definition, the Act provided two other provisions regarding the boyfriend loophole. First, the Act is not retroactive and does not apply to any conviction for a misdemeanor crime of domestic violence before the enactment of the Act.²⁰Bipartisan Safer Communities Act, S. 2938, 117th Cong. This means that for individuals that were convicted of a misdemeanor of domestic violence where the victim was person in a dating relationship, their firearm rights are not affected. Only individuals with domestic violence convictions after the enactment of the Act will be affected. The second provision allows persons convicted of no more than one misdemeanor of domestic violence against an individual in a dating relationship to have their record expunged or set aside and have their firearm rights restored.²¹18 U.S.C. § 921(a)(33)(C). This is contingent on the conviction being expunged and the passage of 5 years after the judgement of conviction.²²Id. Firearm rights restoration is not available to individuals under this subparagraph when they are convicted of a misdemeanor of domestic violence and the individuals are in a domestic relationship other than a dating relationship.²³Id.

III. Discussion

When analyzing a congressional bill or criminal statute, it is easy to get lost in the language and question the importance of mere definitions. However, it is vital to take a step back and realize the importance of this Act and its impact. The Act helps keep firearms out of dangerous hands and protects dating partners from gun violence, specifically women. In the United States, nearly one in four women and one in seven men will experience severe physical abuse by their domestic partner.²⁴Domestic Violence and Firearms, The Educational Fund to Stop Domestic Violence (2020), https://efsgv.org/learn/type-of-gun-violence/domestic-violence-and-firearms/. Firearms contribute to and amplify the problem. Around 4.5 million women are threatened with a gun and one million women have been shot or shot at by an intimate partner.²⁵Id. Every month, an average of seventy women are shot and killed by an intimate partner.²⁶Id. Additionally, a woman is five times more likely to be murdered when her abuser has access to a gun.²⁷Id. These statistics portray the potential lifesaving importance of the Act and similar changes in law.

According to the National Center for Health Statistics, marriage rates hit an all-time low in 2018.²⁸U.S. Marriage Rate Hit New Recorded Low, United States Congress Joint Economic Committee (2020),  https://www.jec.senate.gov/public/index.cfm/republicans/2020/4/marriage-rate-blog-test. Additionally, marriage rates have particularly declined among minority populations and lower income groups.²⁹Id. Among those ages 25 to 54, 59% of African Americans and 38% of Hispanics were unpartnered in 2019.³⁰Rising Share of U.S. Adults are Living Without a Spouse or Partner, Pew Research Ctr. (2021), https://www.pewresearch.org/social-trends/2021/10/05/rising-share-of-u-s-adults-are-living-without-a-spouse-or-partner/. As relationships evolve for American adults, a rising share are not living with a romantic partner.³¹Id. The decline in marriage and the increase in adults living without a partner decreases the amount of victims that are protected by domestic violence statutes. The issue is exacerbated in minority and low-income communities where traditional relationship are less common.

States should adapt to the problem of gun violence in domestic relationships by shaping their domestic violence laws to be similar to the definition in the Act and more in line with current relationship trends. That is, all fifty states should include individuals in a dating relationship in what the state considers a misdemeanor of domestic violence. Without all states catching up, some individuals who commit domestic violence against a person in a dating relationship may not be convicted of a misdemeanor of domestic violence in the first place. Without conviction, the federal firearm restriction is worthless because it requires an individual be convicted.

The Act allows for a one-time offender to restore their firearm rights after five years and expungement.³²18 U.S.C. § 921(a)(33)(C). Some question the reason for this caveat because dating partners and spouses can do the same type of violence.³³Treisman, supra note 4. The provision allows offenders who commit domestic violence against a dating partner to be able to restore their firearm rights after 5 years but an offender who commits domestic violence against a spouse has a lifetime ban.³⁴Id. The addition of this provision is likely to appease firearm rights proponents. Furthermore, dating relationships are likely to be shorter than marriages. Although, that is not always the case. The purpose of the change in law is to keep guns out of dangerous hands and protect potential victims. Perhaps the drafters believed that five years was enough time to protect the potential victims from gun violence.

IV. Conclusion

The Bipartisan Safer Communities Act contains many important provisions and changes to federal law that improve firearm laws and access to mental health services. Importantly, the Act closes the boyfriend loophole that previously allowed some convicted domestic abusers to purchase or own firearms. Now, there is a federal restriction on purchasing firearms for individuals who are convicted of domestic violence against a dating partner. With modern trends moving away from traditional marriage, it was an important step to include dating relationships into the definition. All states should follow this path and amend their criminal statutes to ensure that all domestic abusers are properly convicted and unable to possess a firearm.