Behind the decades-long fight to close the 'boyfriend loophole'
Editor’s Note: If you or someone you know is experiencing domestic abuse, use a safe computer and contact help. Call the National Domestic Violence Hotline at 800.799.SAFE (7233), or visit https://www.thehotline.org. Find more information on the ‘boyfriend loophole’ from the Giffords Law Center here.
Listen: A bonus podcast episode about a pro-gun community in Louisiana leading the charge on disarming domestic abusers.
A convicted domestic abuser, or anyone who has a personal protective order issued against them, can’t buy or possess a gun. That’s federal law.
Except, there’s a loophole. If the abuser is the victim’s boyfriend, he’s free to own firearms.
“We should be paying attention to what he did as opposed to how long he’s known her or whether he was married to her or whether he had a child with her,” says Susan Sorenson, professor at the University of Pennsylvania.
It’s the so-called boyfriend loophole. Advocates are trying to close it.
“This is about saving lives,” domestic violence policy advocate Rob Valente says. “This is about a real statistical likelihood of someone being killed by an intimate partner. This is not a gun grab. And if we can’t get ourselves together as a society to do that. I don’t even know what to say.”
Today, On Point: The story behind the decades old fight to close “boyfriend loophole.”
Rob Valente, domestic violence policy advocate for over 30 years. (@robvalentedvpa)
Susan Sorenson, professor at the University of Pennsylvania. Her research includes violence against women as a public health issue and firearms as a consumer product. Author ofNew data on intimate partner violence and intimate relationships and Nonfatal Gun Use in Intimate Partner Violence.
Pam Reilly, the mother of Rosemarie Reilly, who was fatally shot by her ex-boyfriend.
David Keck, director of the National Resource Center on Domestic Violence and Firearms at the Battered Women’s Justice Project.
Kira, a domestic violence survivor.
Transcript: The Fight To Close The Boyfriend Loophole
CHAKRABARTI: Last month, President Joe Biden signed the reauthorization of the Violence Against Women Act. The act has always been important to him. As Senator, Biden helped write the original legislation in 1990. Here he is in a December hearing that year.
[Archival Tape]: 30% of all the women who seek treatment in hospital emergency rooms for any reason are there because they’re the victims of wife-beating. And most tragically, every week between now and Christmas, about 30 women will be killed by their spouses. So the crisis of domestic violence is taken to its worst extreme.
CHAKRABARTI: The Violence Against Women Act was signed into law in 1994. It requires reauthorization every five years, most recently in 2018. But that time around, reauthorization wasn’t a simple, pro-forma vote. It took years of intense lobbying and protracted debate all the way until last month, when the reauthorization finally made it to Biden’s presidential desk.
[Archival Tape]: The idea that this took five years to reauthorize, it drove me crazy the rationale for why we weren’t going — anyway, I don’t want to get it.
CHAKRABARTI: Biden doesn’t want to get into it because it has to do with guns.
This is the story of the long, imperfect process of lawmaking and how imperfect presumptions once baked into the law of the land are often impossible to pry out.
[Archival Tape]: Today, we began to disarm the criminals and the careless and the insane.
CHAKRABARTI: On October 22, 1968, President Lyndon Johnson signed the Gun Control Act into law. But even as he put his signature on the act, Johnson lamented that the law did not include a national gun registry, an idea blocked by the NRA.
[Archival Tape]: We must continue to work for the day when Americans can get the full protection, the kind of protection that most civilized nations have long ago adopted.
CHAKRABARTI: However, there was something interesting tucked into the ’68 Gun Control Act, a rule stating that anyone convicted of felony domestic violence could not own a gun. But for many advocates, that bar was too high. Almost 30 years passed before Senator Frank Lautenberg, New Jersey Democrat, introduced an amendment that lowered the threshold. It would prohibit gun ownership after a misdemeanor domestic violence conviction or if a personal protection order had been issued against the abuser. Even that amendment faced an uphill battle. Here’s Frank Lautenberg on the Senate floor September 26, 1996.
[Archival Tape]: Last night, I learned something about this place that shocks me — I’m here now 14 years — that even a mandate voted 97-to-2 can be dispensed with by a wink of the eye and out of the head and the Rifle Association looking over member’s shoulders.
CHAKRABARTI: Despite the NRA’s lobbying, the Lautenberg amendment did make it into the gun control law in 1996. The Lautenberg amendment defined “intimate partner” as someone who is “current or former spouse of the victim having lived or is living with the victim or has a child with the victim.”
It left out an entire group of intimate partners — convicted abusers who had been dating but never living with the victim. They can still legally own firearms. That is the so-called “boyfriend loophole.”
In 2018, Democrats and survivor advocates saw an opportunity to close the boyfriend loophole. They wanted to do it through the reauthorization of the Violence Against Women Act. As it had done in 1968 and 1996, the National Rifle Association lobbied hard in 2018. Former NRA’s spokeswoman Dana Lash:
[Archival Tape]: When they say that there’s a loophole, there isn’t a loophole. I mean, it’s already codified. … These are the same lawmakers that say they want to empower women, but yet they’re working to diminish due process for men and women and working to disarm us.
CHAKRABARTI: Representative Debbie Dingell, Michigan Democrat, on the House floor there in 2018.
[Archival Tape]: We’re not taking away due process. … All it does is say that if someone has been convicted — convicted — as an intimate partner, that they would not have access to a gun.
CHAKRABARTI: The House passed its version of the Violence Against Women Act reauthorization. With that, boyfriend loophole closed in 2019. Democrats knew it wouldn’t make it through the Senate but sent the House bill there anyway, where it stalled, gathering dust until this year.
Last month, Democrats in the House tried again, and again, the reauthorization was destined to meet a wall of resistance in the Senate. But this time around?
[Archival Tape]: Our bill is a compromise. It doesn’t include everything that Senator Feinstein and I wanted or everything Senator Ernst and Murkowski wanted.
CHAKRABARTI: The provision closing the boyfriend loophole was taken out. Senator Dick Durbin, Democrat of Illinois, explained why.
[Archival Tape]: Well, you need 60 votes. And in order to get anywhere near 60 votes, that provision became controversial, and we had to measure the remainder of the bill against that provision. It’s a tough choice.
CHAKRABARTI: The NRA claimed victory, saying in a March 15 statement, “If not for the years-long advocacy campaign by NRA membership and NRA Institute for Legislative Action on Capitol Hill, blocking the expansion of these so-called loopholes could not have been achieved. Members of Congress craft the law. Everyday Americans live it.
Each year, at least 600 women in America are shot and killed by an intimate partner. That’s one woman every 16 hours. About half of the shooters had dated but not married their victims. In Michigan, firearms restrictions are not automatic following the issuance of a temporary personal protection order. It’s left up to a judge to decide. And in one case, the judge chose wrong.
PAM REILLY: We did everything right, but nothing was on our side.
CHAKRABARTI: Pam Reilly lives in New Baltimore, Michigan. In high school, her daughter, Rosemarie, was a straight-A student, played softball, was in the marching band and had a boyfriend, Jeremy Kelley. Rosemarie went off to college at Grand Valley State University. Jeremy went to train as a mechanic in Ohio. He graduated in 2015, went to Grand Rapids and moved in with Rosemarie.
REILLY: When they ended up moving in with each other is when Rosemarie realized how controlling he was, and [it] only took one time of him hitting her, and she wanted out. But he won’t let her leave.
CHAKRABARTI: But Rosemarie did it. She told Jeremy she wanted to end the relationship.
REILLY: And I was meeting her at a restaurant in Granville, and she was a half hour late and I called her and called her and she wasn’t answering. And then finally, she gave me a call and said, “I’m on my way. I’m sorry, I’m running late.” When she walked into the restaurant, and I looked at her, her nose was crooked. I could tell she’d been crying. She had red marks on her neck and her throat area. And then she told me that Jeremy had hit her several times, tried choking her, held a pillow over her face and a gun to her head.
Later, a police report was made and Officer Wallace encouraged her to get a police protection order, and Jeremy was served with it. But later, what really threw him over the edge was: there was two felony arrest warrants out for him, and instead of going and getting him and arresting him, they mailed them to him.
CHAKRABARTI: Rosemarie had checked off two important boxes on the personal protection order request form. One: Does the respondent own firearms? She checked “yes.” Two: Has the respondent threatened to harm or kill you with a gun? Rosemarie checked “yes.”
REILLY: I still, until this day, am dumbfounded how anybody on the street could go up and point a gun to someone and say, “I’m going to kill you,” and you’re not arrested for it.
CHAKRABARTI: On October 17, 2016, a judge granted Rosemarie’s personal protection order. But there was a box the judge did not check — the box that would have prohibited Jeremy from having a gun.
REILLY: So, if the judge had done his job and actually checked that box, the police, I think, would have taken it more seriously.
CHAKRABARTI: All Pam knows for sure is that Jeremy did not take the personal protection order seriously.
REILLY: He never stopped. He never stopped. He called her one day like 78 times. And one day he called her. He emailed her I don’t know how many times. He hacked all her accounts. He changed all her passwords. It was bad.
CHAKRABARTI: Jeremy even showed up at Grand Valley State University and pursued Rosemarie across campus. Pam says her daughter was constantly calling the police. Jeremy was never arrested.
On November 5, 2016, the Reilly family rented a hotel in Grand Rapids. Pam’s husband, John, was turning 60 and the family wanted to celebrate. They went to dinner and lounged by the pool. Rosemarie had taken a big nursing test earlier that day. So after the family celebration wound down, she decided to go out with a classmate.
REILLY: At about 3:13 in the morning, I woke up. And their room — Shelby and Rose Ray’s room — was right next to ours. And I went to go call her to see if she got in OK, and it went right to voicemail. And something in my body just didn’t feel right. You know, I woke up, I was scared, and [said] “God, John, I wonder if she’s in there.” He goes, “Oh, they’re just sleeping, just let them go.”
CHAKRABARTI: At 8:30 that morning, police informed Pam and John that approximately five hours earlier, around 3:30 a.m., Jeremy showed up at Rosemarie’s friend’s house. Rosemarie had answered the door. Jeremy grabbed her by the hair and dragged her outside. He had a gun. She tried to escape. Jeremy Kelley shot Rosemarie repeatedly and then pulled the trigger on himself.
REILLY: I just couldn’t believe that they were telling me that he killed her. I was in shock. I knew he was going to hurt her if he wasn’t arrested. If there was nothing done, she was in grave danger. That’s why we were there. That’s why I was always there for those last couple of weeks.
What happened to her should never have happened to her. That judge should have checked that box, there’s no doubt in my mind. Her funeral was on her 22nd birthday. That’s the hardest thing. But the nightmare I live with every day. And I promised her when I buried her, that if I could prevent one mom, one dad, one sibling from going through what we go through, that she wouldn’t have died in vain.
CHAKRABARTI: Rosemarie Reilly was murdered by her ex-boyfriend, Jeremy Kelley on November 6, 2016. She was 21. Shortly after her death. Her mother, Pam, found a letter notifying Rosemarie that she’d been awarded a full scholarship to the University of Michigan to study anesthesiology.
CHAKRABARTI: Today we’re talking about domestic violence and the so-called boyfriend loophole. And joining me now is Susan Sorenson. She’s a professor of social policy at the University of Pennsylvania. Professor Sorenson, welcome to you.
SUSAN SORENSON: Thank you very much. And hello, Meghna.
CHAKRABARTI: Also with us today is Roberta Valente, a domestic violence policy advocate for more than 30 years. Roberta Valente, welcome to you.
ROBERTA VALENTE: Thanks for having me on this show.
CHAKRABARTI: First of all, and Rob, let me just get a little bit of this history from you. Focusing on 1996, when Senator Lautenberg introduced that Lautenberg amendment, it seemed to be maybe the best time to get the broadest protection for women who were suffering from abuse from their intimate partner. So can you tell us why the definition of intimate partner was tailored the way it was in the Lautenberg amendment that produced the boyfriend loophole?
VALENTE: Well, some of it just shows us that things haven’t changed over the years. It was written in a time first that we weren’t thinking about dating partners, but also behind the scenes there was a concern in parts of Congress that the term dating partner would be used as a proxy for okaying same sex relationships. And so they didn’t want to get that kind of language into the Violence Against Women Act, and they didn’t want that amendment to have that either.
So we’ve learned a lot since then. Thanks to researchers like Susan, we’re able to prove how many relationships that are dating. Relationships pose the same risks as the ones that are spousal relationships or former spousal relationships or cohabiting or formally cohabiting or parenting relationships. The bottom line is these are all people who need protection. We want to save their lives.
CHAKRABARTI: So it seems like, again, in order to get to legislation that serves as many people, as many Americans as possible. It’s this imperfect process of compromise after compromise, after compromise. And yet this one particular issue, it seems to be stuck where it is. And we just saw that this year, when Democrats in Congress couldn’t get the reauthorization of the Violence Against Women Act through the Senate if it didn’t remove attempts to close the boyfriend loophole.
So we’ll talk more about that in a second. But Professor Sorenson, as Rob mentioned, I’d love to get a deeper understanding about how widespread dating partner violence is, particularly in places like where you are in Philadelphia.
SORENSON: Yeah, but there’s two different ways that I can respond to your question. One is that not just for Philadelphia, but for the entire United States. The person who is most likely to murder a woman is going to be an intimate. And among those intimates, the person who is most likely to murder her is a boyfriend. So it’s not a spouse or an ex-spouse, but it’s a boyfriend or an ex-boyfriend. And we know from our research for more than 30 years now. That a male intimate with the gun is a person who’s most likely to kill a woman.
In fact, women are 2 to 2.5 times as likely to be murdered by a male intimate with a gun than they are to be shot, stabbed, bludgeoned to death, strangled or killed in any other way by a stranger. So it’s really clear that guns and intimate partners, particularly boyfriends, have a very important part and are a very important cause of death for women across the nation.
CHAKRABARTI: Now, correct me if I’m wrong, and I just want to focus on Philadelphia for a moment, because I think it’s your research that I was looking at that, you know, in places like Philadelphia, women who have either been injured or killed by firearms that were used by their intimate partners, that the majority of those women or the strong majority of those women were by, like you’re saying, dating partners. Is that right?
SORENSON: That’s correct. And there’s very little research on what we call non-fatal gun violence in intimate partnership or in general, for that matter. But we found when we looked at over 30,000 incidents of domestic violence to which police were called and responded in a single year, over 80% of those involved non-marital relationships and about half of those involved current boyfriends and girlfriends.
CHAKRABARTI: Wow. So, Rob Valente, let me turn back to you here. What do you say to that?
VALENTE: I think that the data makes the point for us very clearly. And it’s something that advocates no victim advocates know intimately well from anecdotal evidence. We see this all the time and the states even see this in the cities. There have been states and municipalities that have passed laws that recognize that dating partners should be included in this.
But it’s a patchwork. It’s not a complete protection, and it’s not what we need. What we really need is that complete federal protection that we would get by closing the boyfriend loophole. Otherwise, we’re looking at half of these cases being unprotected. And if you think about it, what’s the difference between being married and dating when somebody is pointing a gun at you? It’s a crime either way.
CHAKRABARTI: Professor Sorenson, you also mentioned sort of non-lethal physical injuries that come from, as Rob said, having a gun, pointed at a person. We have a story here about that. Back in 2014, Kira, a woman living in New York met a man at the gym and they dated for four years and lived together for three. And throughout most of that time, her boyfriend abused her verbally, emotionally, mentally and physically. He owned five guns, including a Remington 300 and an AR-15.
KIRA: He would intimidate me by lining them up in the hallway or in the living room against the wall. And then he would meticulously take each one and spend a few hours taking them apart, cleaning them in front of me. He would also point them at me a couple of times. It was always an AR-15 that he would point at me, and he wouldn’t pull the trigger.
But he would keep his finger on the trigger, and he would gently kind of touch it and then kind of like and then release it. And he would always point it at me and then would describe how I would look if he shot me. He would always say, Imagine seeing your brain scattered all over the room. When he brought out his AR-15 and pointed at me he felt this control and power that he’s never felt.
But the control that he had over me was so strong that I knew that if I did anything, I could have been gone in a second. And he knew that he had me so wrapped around his world at that point and I couldn’t get out of it.
CHAKRABARTI: Now, Kira did eventually get out, and her boyfriend also got convicted of third-degree assault and criminal mischief, both misdemeanors in New York. His sentencing was community service and anger management classes. No jail time. To her knowledge, his guns were taken away from him by his parents, but not the police. And Kira does not know if he has since gotten those weapons back. So, Professor Sorenson, tell us more about what we do know about these kinds of these non-fatal, even nonphysical impacts of guns in intimate partner relationships.
SORENSON: And I’m really glad you’re asking that question, because it’s far more common to be for a woman to be threatened by a gun, then to actually be killed with a gun, of course. And we have just about 4.5 million women who have been threatened by a gun with a partner.
And we found here in our work in Philadelphia that the most common gun use, intimate partner violence was simply brandishing, showing the gun, as you just described in this circumstance, threatening her with a gun, shooting at a pistol whipping was far less common. And that’s really important because as the individual who you interviewed reported; it creates an environment of terror in the home. It creates a horrible sense of fear. And it really facilitates what would be considered chronic and escalating abuse.
Because someone has that gun, someone can take your life within a moment and they’re letting you know that gun use in a relationship is not a sign of healthy relationship. When I speak about this, I often will talk about if we’re faced with someone in the street who says, give me your wallet, give me your purse.
If they just simply say that, you might turn and run or fight back. But if they approach us with those same words and they’re pointing a gun at us, we’re likely to acquiesce to say, Wait a minute, isn’t there another way we can handle this? Here’s what you want. What else do you need? And to back down. And that same process is likely to occur in the home.
Yeah, well, and in fact, with the example that you gave about, you know, being robbed in the street, if a gun is used for the exact same action, the law even sees the crime differently. I mean, that gets to the heart of the point becomes a gun crime then, which is not what’s happening in with the persistence of the boyfriend loophole.
So I’d like to just dig into specifically in much more detail about why the loophole is having such a tough time getting close. And Rob, let me turn back to you here, because we heard over and over again in 2018, 2019, and every year thereafter, primarily and most vocally from the NRA, that closing the boyfriend loophole was not needed because of what’s written in the Lautenberg amendment already … would be essentially denying dating partner’s due process. And unnecessarily taking away their weapons. What’s your response to that?
VALENTE: I’m so glad you asked that question, especially referencing due process. That is literally written into the law that’s on the books right now. It says that following appropriate due process and adding another relationship to this would not change that at all. And I can tell you, as someone who has seen how the justice system handles these cases, and what it takes for a judge to actually make a finding that would impair somebodies access to a firearm. It’s a very high standard. It’s a standard of violence.
The NRA continually puts out information that says, oh, you might have gone to a bar and met a woman there and you got her phone number. And when you called her, she suddenly decided she didn’t want to see you anymore. So then she got a protection order against you and then you lost your gun just because some woman flirted with you. That’s not true. That’s simply incorrect. There has to be the kinds of violent threats that we’re talking about. You know, in these stories that you’ve taped and shared with us.
CHAKRABARTI: Rob, before you continue, I mean, we’re getting some questions about exactly this because of the sort of, by definition, uncertainty that is in dating relationships. I mean, the law sees marriages in a certain way. Right. There’s a piece of paper to prove the existence of a legal relationship there. So, for example, someone … is asking, wouldn’t it be difficult to prove a dating relationship exists in a situation as opposed to proof of a marriage? And doesn’t that complicate things?
VALENTE: I can understand that. And in working towards getting this loophole closed that has been raised. One thing I can tell you is that currently in federal law, there is a crime of what we call dating violence. It’s literally in the U.S. code under Title 18. And there’s a definition of what constitutes a dating relationship that would be a requisite part of proving dating violence. And it’s defined as a relationship of a romantic nature that has been going on for a substantial amount of time. And there are clear indications of dating or romantic behavior between the partners.
And this is a definition that was adopted in a lot of the states just for dating violence. And this is separate from just the issue of firearms. It is whether or not someone can get a protection order or whether or not if someone’s assaulted by someone they’ve been dating, will that constitute a crime of dating violence? And we have a large body of case law, and we’ve been doing this for years. So the judges know what the standards are for this.
CHAKRABARTI: So just to be clear, what you’re saying is that no matter what, someone has to go to court and either the abuser ends up being convicted of a misdemeanor. So there has been a judicial process there. Or there has to be a standard of proof provided to a judge so that the judge issues a personal protective order. And the only difference we’re seeing now is those things have to happen. And if the person, the abuser, is a former spouse, then the weapons are taken away. But if they’re not, the person gets to keep them. But the process is the same.
VALENTE: It is. And another way of putting that is to say both the married partner, intimate partner and the dating intimate partner are entitled to get a protection order. But only the married one is entitled to get the protection against fire firearms violence. And so if the finding is sufficient to issue the protection order, or to convict someone of the misdemeanor crime of domestic violence or dating violence, why are we just suddenly making that exception happen? It just puts too many people at risk.
This article was originally published on WBUR.org.
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