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The gun deal could close the ‘boyfriend loophole.’ Here’s what it is.

It’s a potentially significant win for domestic violence victim advocates

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This story has been updated.

The bipartisan deal on gun legislation announced Sunday might be considered tepid by gun control advocates. But one provision heralds a potentially significant win for domestic violence victim advocates after years of bitter stalemate — the closure of the so-called “boyfriend loophole.”

“Closing this loophole is very important for the safety of domestic violence victims,” said Emily Rothman, a professor at Boston University who studies gun violence and intimate partner abuse. “I think it’s excellent news that people are getting on to the same page about that and there is bipartisan agreement that people who are abusive to their partners should not have access to firearms.”

Senators strike bipartisan gun deal, heralding potential breakthrough

The loophole refers to the fact that while federal law bars firearm purchases for those convicted of domestic violence against someone they have been married to, lived with, or with whom they have a child, it omits other dating partners. It is a significant oversight, advocates say, given that the proportion of murders committed by dating partners versus spouses is about equal, according to a Department of Justice analysis.

“A marriage license, advocates argue, shouldn’t be the line where authorities can weigh in,” said Robert J. Spitzer, a professor at SUNY Cortland and the author of several books on gun policy.

The legislation itself has not yet been drafted, leaving substantial uncertainty about what the final bill will contain. The statement announcing the deal, signed by 10 Democrats and 10 Republicans in the Senate, highlights that it includes provisions to encourage more states to enact red-flag laws to prevent gun purchases by people a judge deems at risk of violence, and an expansion of the number of sellers required to run background checks on potential buyers. It would also earmark billions of dollars for mental health care and enhanced security in schools.

For victim advocates, the stakes of closing the boyfriend loophole, in particular, are high: “I believe that closing this particular loophole may be the single most important and beneficial part of the overall package,” said Spitzer, while cautioning that a lot depends on what language ends up in the final bill.

“It all really hinges on the wordsmiths that craft this provision,” he said.

States move to restrict domestic abusers from carrying guns

Research shows that the presence of guns can have devastating consequences in domestic violence situations: A woman is five times more likely to be murdered when her abuser has access to a gun, according to the Johns Hopkins Center for Gun Violence Solutions.

There is also a strong link between domestic violence and mass shootings. One study found that in 68 percent of mass shootings between 2014 and 2019, the shooter either murdered a family member or a dating partner, or had a history of domestic violence.

Even when guns are not lethal, research shows they can be used by abusers to threaten victims, including by cleaning a gun during a dispute, threatening to shoot a victim’s pet or firing the weapon during an argument.

“If a person is abusive and violent towards their partner, it’s better to keep firearms away from them. I haven’t met many people who disagree with that,” Rothman said.

But like most debates about guns in the United States, what many Democrats and some Republicans consider common sense has not translated into a political consensus with enough teeth to enact legislation.

The “boyfriend loophole” crops up in both state and federal law, and some of the types of red-flag laws this bipartisan framework hopes to push exclude dating partners from increased gun control. In some states, restraining orders are similarly only applicable to a spouse or a domestic partner.

Disagreement over the boyfriend loophole has been at the center of a debate around the 1994 Violence Against Women Act, which also had carve-outs for dating partners for years. The National Rifle Association lobbied aggressively against attempts to close the loophole during reauthorization debates in 1996 and 2018.

The House successfully voted to reauthorize VAWA last year with language that added dating partners convicted of domestic violence and stalkers to the list of people who should not be able to own firearms.

This added language, however, drew opposition from the NRA and Republican legislators, and risked dooming the bill in the Senate. Ultimately, Senators opted to retain the loophole, rather than risk the VAWA floundering indefinitely.

“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, and we made the choice we thought was right,” Sen. Richard J. Durbin (D-Ill.) said in March.

In a statement shared with The Washington Post, the NRA said it does not take positions on “frameworks,” but it “is committed to real solutions to help stop violence in our communities.”

The statement continued: “The NRA will continue to oppose any effort to insert gun-control policies, initiatives that override constitutional due process protections, and efforts to deprive law-abiding citizens of their fundamental right to protect themselves and their loved ones into this or any other legislation.”

Laws restricting abusers from accessing guns can be lifesaving, research shows: One 2018 study found that states with laws banning those convicted of violent misdemeanors from owning guns saw a 23 percent reduction in intimate partner homicide.

Not all domestic violence experts, however, see this kind of legislation as an unmitigated good.

“Getting guns out of the hands of people who abuse their partners is essential, but doing that using the criminal law is problematic,” said Leigh Goodmark, a professor at the University of Maryland Carey School of Law and the author of the forthcoming book “Imperfect Victims.”

“The law will be disparately enforced against people of color, especially Black people, as all criminal laws are,” Goodmark said. “And it will require that people seek out law enforcement intervention, which many people are, for good reason, reluctant to do.”

Research shows that Black women, who are twice as likely as White women to be shot and killed by an intimate partner, face a slew of barriers getting help in abusive situations. Research also shows that relying on arrests and criminal convictions to prevent domestic violence can actually make victims less safe, particularly Black women, by exacerbating conditions like poverty and unemployment that make abuse more likely and harder to escape.

The boyfriend loophole is also not the only gap through which abusers can arm themselves. A provision known as the Charleston loophole means that if a federal background check has not been completed in three days, the applicant can move forward with a firearm purchase. And background checks are not required at all for private gun sellers in many states — which results in an estimated 22 percent of gun owners never having to get one, according to one study.

For Goodmark, the latest legislation is uninspiring, given the scale of “an overwhelming epidemic of gun violence.”

“It won’t do nothing, but it won’t do much, and it comes with real costs,” she said.

Still, this legislation is set to be the biggest leap forward in decades.

“I have talked to multiple responsible gun owners, and people who provide gun safety training, who are all in agreement that if a person has demonstrated that they are violent, or engage in stalking behavior, or make criminal threats, that person should not have access to a firearm,” Rothman said. “This legislation is a step in the right direction.”

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