The “Boyfriend Loophole” Lets Abusers Own Guns

the boyfriend loophole

IF SOMEONE ASKED YOU what “the boyfriend loophole” was, would your first guess be that it had to do with gun ownership? Earlier this month, President Obama once again called on Congress to take a small step toward sensible gun legislation by narrowing – not even closing – the well-known “gun show loophole.” Currently, unlicensed dealers online and at gun shows sell firearms without performing background checks. Obama’s proposed legislation would require some of these dealers to start performing checks.

Yet lesser-known loopholes would leave many women vulnerable to homicide at the hands of abusers even if the gun show loophole were closed. In many states, convicted abusers can keep and purchase firearms.

Federally, it is illegal for people convicted of a misdemeanor domestic violence charge to possess a firearm. However, because states define such misdemeanors in different ways, people who have committed certain acts of domestic abuse that would bar them from firearms in some states can still obtain and keep guns in others. Although a Supreme Court decision in 2014 supported a broad definition of “physical force” when assessing such misdemeanors and determining whether firearms should be prohibited, matters are still largely left to the interpretation of the states.

A long line of research confirms that there is a much greater risk of a woman being murdered if her abuser has access to guns in the home. A 2003 study, for example, found that access to firearms increased the risk of death for abused women by 500%.

Even if states came more in line with federal laws, many women would be left unprotected. Federal law defines misdemeanor domestic violence as that which “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.” This means that women who are not married to their abuser, who do not have children with them, and who don’t live with them are unprotected by domestic violence legislation. Some call this “the boyfriend loophole.”

In June 2014, the Center for American Progress (CAP) released a report on discrepancies between state and federal laws concerning abusers and gun ownership. Only 10 states have expanded firearm restrictions to dating partners convicted of abuse. Dating partners, the Center notes, were responsible for almost half of all intimate partner homicides in 2008. Nine states prohibit those convicted of misdemeanor stalking charges from purchasing guns (two more states prohibit gun purchase in some misdemeanor stalking cases). And, according to a Johns Hopkins Bloomberg School of Public Health report, only a small number of states have legislation stating that firearms possession is or can be prohibited in cases of temporary protective orders. Official restraining orders can often take weeks to process. This is one more legislative problem, along with the boyfriend loophole and discrepancies between state laws, that enables abusers to keep and buy guns.

The Center for American Progress reports on another very troubling aspect of current legislation: the vast majority of states don’t have any protocol in place for reporting domestic violence charges to the National Instant Criminal Background Check System (NICS) so that they show up on background checks as prohibiting offenses. Only three states (New Mexico, New Hampshire, and Connecticut) are following the reporting practices recommended by the FBI, and they account for 79% of all records of domestic abuse misdemeanor charges in the NICS Index. As of 2013, 14 states had not submitted any domestic violence charges to the NICS, and 21 of those that have submitted only a very small number, much lower than the number of charges. These crimes are labeled as other crimes, such as assault or battery, and are not being flagged as specifically domestic abuse-related, which may impact the results of the background checks.

Investigators sometimes have to research misdemeanors before instructing gun sellers not to sell to an individual, and in cases of domestic abuse, this investigation could last longer than the allotted three day period. If results are inconclusive after three days, a “default sale” results. If investigators turn up evidence for prohibiting purchase thereafter, it’s called a “delayed denial” and efforts are made (sometimes unsuccessful) to repossess the firearms. The CAP report found that a disproportionate amount of delayed denials occurred in cases where domestic abuse charges were the ultimate reason for denial.

Expanding the background check requirement to many current unlicensed dealers could have an impact on gun violence. But the information available to background checkers is not thorough enough, and many states’ laws on domestic abuse and firearms are too weak. The security of women’s lives should not vary depending on what state we’re in. The federal law prohibiting abusers from owning guns should be extended to dating partners, and states should abide by the same criteria for what constitutes a prohibitive misdemeanor domestic abuse charge. By closing the boyfriend loophole, lawmakers would ensure that women threatened by intimate partner violence would receive protection in all scenarios.

Gun legislation is far from the answer to eradicating violence against women. Underlying causes, including a culture of violence and gender inequality, must be addressed. But the thousands of women who have been shot to death by their abusers didn’t have time to wait for these more radical victories. The thousands of women who will be shot to death by their abusers over the next several years if the boyfriend loophole, and others like it, continue to exist don’t have that time, either. Abusers should not have the right to bear arms; women have a right to our lives.