The ‘boyfriend loophole’ in federal gun law: What the research says

The JR Guide to the 2020 Democratic Policy Proposals

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January 29, 2020

In the lead-up to the 2020 elections, the Journalist’s Resource team is combing through the Democratic presidential candidates’ platforms and reporting what the research says about their policy proposals. We want to encourage deep coverage of these proposals — and do our part to help deter horse race journalism, which research suggests can lead to inaccurate reporting and an uninformed electorate. We’re focusing on proposals that have a reasonable chance of becoming policy. For us, that means at least 3 of the 5 top-polling candidates say they intend to tackle the issue. Here, we look at what the research says about the so-called “boyfriend loophole” in federal gun law.

Candidates in favor of closing the boyfriend loophole

Michael Bennet*, Joe Biden, Michael Bloomberg, Pete Buttigieg, John Delaney*, Amy Klobuchar, Bernie Sanders, Tom Steyer, Elizabeth Warren

What the research says

Certain people convicted of a misdemeanor domestic violence offense cannot legally own a gun under federal law — but others can, and the difference comes down to how the law defines “intimate partner.” Limited research indicates federal and state laws restricting guns from people who commit misdemeanor domestic violence crimes, such as hitting a spouse, can prevent intimate partner homicides. But academics stress that more research is needed.

Key context

Federal law prohibits a person convicted of a misdemeanor domestic violence crime involving the use or attempted use of physical force or a deadly weapon from legally owning any type of gun. Former U.S. Sen. Frank Lautenberg of New Jersey introduced the legislation as part of an omnibus spending bill that President Bill Clinton signed into law in 1996.

The Lautenberg Amendment amended the Gun Control Act of 1968, which previously barred people convicted of a felony domestic violence offense from legally owning a gun.

The so-called “boyfriend loophole” hinges on how the Lautenberg Amendment defines “intimate partner.” For a person convicted of misdemeanor domestic violence to be barred from owning a gun, that person has to be a current or former spouse of the victim, have lived or be living with the victim, or have a child with the victim. The boyfriend loophole means someone dating the victim who has never lived with the victim and doesn’t have a child with the victim can legally own a gun — even after he or she has been convicted of a misdemeanor domestic violence crime.

Nineteen states have effectively closed that loophole, including California, New York, Illinois and Texas. The Rand Corp. maintains a state-by-state database of firearm laws. The version of the Violence Against Women Reauthorization Act of 2019 that passed the House in April 2019 would close the boyfriend loophole, but there’s been no action on the Senate version since it was introduced there in November.

It’s called the “boyfriend loophole” as shorthand for the fact that men are more likely than women to perpetrate domestic violence, but the federal laws apply regardless of the sex or sexual orientation of the perpetrator.

The rate that women are victims of intimate partner violence is five times higher than the rate for men, according to data from the Bureau of Justice Statistics. Researchers at the Centers for Disease Control and Prevention, analyzing national data from 2003 to 2014, found in a July 2017 research report that more than half of women killed during that period were killed by intimate partners.

In another recent paper, published in March 2019 in Violence and Gender, researchers analyze national data from 2010 to 2017, finding that “More than two-thirds of intimate partner homicides involve a male perpetrator and a female victim, in comparison with one-fifth of incidents in which the genders are reversed. Moreover, nearly half of all female homicide victims are killed by an intimate partner, compared with only 5% of male homicide victims.”

Intimate partner homicide victims under 18 are likely to be girls or young women killed by a firearm, according to an April 2019 paper in JAMA Pediatrics that examines data from 32 states from 2003 to 2016. Nearly 7% of the 2,188 adolescent homicide victims in the sample — average age of about 17 — were killed by intimate partners, and nearly two-thirds of those victims were killed by a firearm.

“Adolescents, particularly girls, in dating relationships may face risk of homicide, especially in circumstances of a breakup or jealousy and when perpetrators have access to firearms,” the authors write.

People experiencing domestic violence who want crisis intervention, safety planning and other help can reach out to the federally funded National Domestic Violence Hotline. loveisrespect, a project of the hotline, was designed to help teens experiencing domestic violence.

Formative findings

State laws that restrict people who’ve had domestic violence restraining orders brought against them from obtaining firearms were associated with a 25% reduced risk of intimate partner homicides by gun, and an overall 19% reduced risk of intimate partner homicide, according to study of data from 1979 to 2003 in 46 of the largest U.S. cities, published in November 2009 in Injury Prevention.

Violence between unmarried partners might be a pressing policy issue. A review of more than 31,000 intimate partner violence incidents reported to Philadelphia police in 2013 found that 82% of those incidents involved current or former boyfriends or girlfriends. But place matters. More than half of the adult population in Philadelphia has never been married, the largest percentage of the 10 largest U.S. cities, the authors note in their paper, published in February 2018 in Preventive Medicine. Other large cities like Chicago and Los Angeles are close behind.

“And when it comes to fatalities, women in the United States are more than twice as likely to be shot and killed by their male intimate as they are to be fatally shot, stabbed, bludgeoned, strangled, or killed in any other way by a stranger,” writes one of the authors, University of Pennsylvania social policy and public health professor Susan Sorenson, in a different paper on the same topic.

Recent research

The Lautenberg Amendment may have saved lives. A July 2015 analysis in the Journal of Policy Analysis and Management finds evidence that the law led to 17% fewer women being killed by an intimate partner with a gun, without any concurrent increase in homicides against women committed using other weapons. The author, University of Connecticut public policy professor Kerri Raissian, stresses the need for more research.

“The federal law is distinct from state laws in several ways: It is retroactive and permanent, there are no public service exemptions, the penalties for violation are usually much larger than those allowed by state laws, and sizable federal resources — especially those related to enhancing the background check system — likely bolster the effectiveness of the law,” Raissian writes. “Future work should seek to understand which of these distinctions matters as this might be critical to the success of future gun or family violence legislation. A second important area for future research is investigating why domestic batterers are sensitive to federal gun restrictions.”

State-level gun restrictions related to intimate partner violence that took effect from 1991 to 2015 were associated with 14% lower rates of intimate partner homicide by gun, and nearly 10% lower intimate partner homicide rates overall, according to an October 2017 analysis in the Annals of Internal Medicine.

The authors of that paper note another loophole in the Lautenberg Amendment:

“Although the federal statute prohibits certain [intimate partner violence] offenders from possessing firearms, it does not explicitly require them to surrender guns already in their possession. In other words, in some states, a person may technically be prohibited from possessing a firearm, but it is up to the person to go to a police station to relinquish the weapon.”

Further reading

Fox in the Henhouse: A Study of Police Officers Arrested for Crimes Associated With Domestic and/or Family Violence

Philip Matthew Stinson Sr. and John Liederbach. Criminal Justice Policy Review, August 2012.

The gist: “Our data on police arrested for crimes associated with domestic and/or family violence demonstrates how some officers escape appropriate penalties due to loopholes and the impact of the discretionary decisions of actors in the system.”

Expert sources

Avanti Adhia, senior fellow, Harborview Injury Prevention & Research Center, University of Washington.

James Alan Fox, professor of criminology, law and public policy, Northeastern University.

Kerri Raissian, associate professor of public policy, University of Connecticut.

Susan Sorenson, director, Ortner Center on Violence & Abuse, University of Pennsylvania.

Philip Matthew Stinson Sr., professor of criminal justice, Bowling Green State University.

 

*Dropped out of race since publication date.

 

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