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Understanding the "boyfriend loophole"

We’ve talked a lot about the problems with the Senate gun control deal, problems such as red flag laws and expanded background checks for those under the age of 21. Those are big problems, to be sure, but they’re far from the only two.

There’s also the so-called boyfriend loophole that’s supposedly being closed, and it seems many out there are unfamiliar with it.

Now, on the surface, this looks like the kind of thing that shouldn’t be too controversial. It merely extends the definition of domestic violence to those who are in a relationship but don’t cohabitate with one another.

That doesn’t sound like a big deal, right?

Wrong.

First, let me offer an important caveat. Much of this discussion will be over the principle of the effort. We don’t have a bill to look at just yet, after all. However, we do have the text of the Violence Against Women Act reauthorization which included a similar measure, so we’re not going off on this cold.

That said, the text of this measure could be quite different.

With the disclaimers out of the way, just what are we talking about, anyway?

In the VAWA reauthorization bill, Democrats sought to expand the definition of domestic violence. By doing so, they would effectively restrict an untold number of people going forward from being able to own a firearm.

Now, few people actually want those who commit domestic violence to be able to own a firearm. The problem is that this particular bit may end up jamming up a lot of people who it probably shouldn’t.

From the 2021 VAWA bill:

Section 921(a) of title 18, United States Code, is amended—

 

(1) in paragraph (32), by striking all that follows after “The term ‘intimate partner’” and inserting the following: “—

 

“(A) means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person; and

 

“(B) includes—

 

“(i) a dating partner or former dating partner; and

 

“(ii) any other person similarly situated to a spouse.

 

Nothing in this paragraph may be construed to require that sexual contact between two persons have occurred to establish the existence of any relationship for purposes of this paragraph. For purposes of this paragraph, the term ‘dating partner’ means, with respect to person, a person who is or has been in a social relationship of a romantic or intimate nature with the person.”;

Now, if that sounds rather vague, it is. What is a “relationship of a romantic or intimate nature” anyway? A drunken make-out session during a party? A one-night stand? Friends with benefits?

Part of the reason we define domestic violence the way we currently do is that there are objective measures in place. We can objectively define the relationship so as to determine if an alleged act of violence is, in fact, domestic violence or not.

Yet trying to close the “boyfriend loophole” requires a great deal of subjective decision-making to take place.

This is especially troubling in the day and age where Millennials have a whole different view on dating and relationships when compared to previous generations.

The waters are well and truly muddied.

Yet this is also the criteria that Senate lawmakers—few of whom are from a generation where this kind of behavior was really tolerated outside of particular subcultures—have decided to lay out and, to be fair, what’s causing a lot of the current friction between the two sides.

Why is this a big deal?

Well, because this definition is so vague that it’s difficult to prove or disprove one way or another. In and of itself, that might not be particularly troubling, except there also appears to be a profound anti-male bias in domestic violence cases.

It’s not unreasonable to imagine a young man being accused of violence against a female acquaintance, only to find his Second Amendment rights revoked simply because she claims they had an intimate relationship because they hooked up one night.

At that point, it rests on the man to try and prove his innocence, which goes against due process as it’s understood in this country.

Of course, much of that is based on problematic text from a bill that was eventually removed. One would hope lawmakers would have learned their lesson and craft language that’s much narrower, but that introduces different issues.

As such, don’t be surprised if we revisit this in the coming weeks.