Reason Roundup

Joe Biden Wants To Close the 'Boyfriend Loophole.' Here's What That Means.

Plus: Ghost guns, the unintended consequences of criminalizing sex work, and more...

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spnphotosten226259 | Pool via CNP / SplashNews/Newscom
(Pool via CNP / SplashNews/Newscom)

During last night's national address, President Joe Biden spoke of his desire to end the "boyfriend loophole." What does this mean?

At its core, it involves one of Biden's long-running specialties: pushing tough-on-crime policies—ones that ramp up federal law enforcement involvement in people's lives and threaten a host of negative and disproportionate consequences for the same groups that always get shafted by them—in the name of being a feminist ally.

Closing the Biden "boyfriend loophole" would involve expanding the Violence Against Women Act (VAWA), which was written by then-Sen. Biden and passed as part of the now-disgraced 1994 Crime Bill.

Every several years, the VAWA gets expanded. Democrats call this "reauthorization," even though the main provisions of VAWA never expire and each new version has done much more than simply add more money for VAWA grant programs. (Biden admitted this in 2019, tweeting that "VAWA's power is that it gets stronger with each reauthorization.") Republicans have recently been voting against these expansions, which Democrats have been having a public relations field day with.

This is how so much bad legislation gets passed—slapping a noble-sounding name on something with questionable results and then demonizing anyone who dares question it. (Hello, Fight Online Sex Trafficking Act, aka FOSTA). It's been very effective for the VAWA—as Democrats say, who could be against stopping violence against women?

All of these tricks were on display during Biden's address last night. "Let's reauthorize the Violence Against Women Act, which has been law in this country for 27 years since I first wrote it," Biden said. "It will close the so-called 'boyfriend' loophole to keep guns out of the hands of abusers.…Pass it and save lives."

VAWA History

Some evidence suggests that VAWA provisions actually increased violence against women, all while steering domestic violence resources away from peer-to-peer networks, local women's shelters, and other forms of material assistance for victims of abuse and toward police, prosecutors, and courts.

"Anti-violence feminists from the left, especially women of color, were adamantly opposed to outsourcing vengeance to the state," note Judith Levine and Erica R. Meiners in The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence. These groups "learned from experience that prisons do not end violence, but instead perpetrate and perpetuate it, while destroying individual lives, families, and communities."

But Biden and a bipartisan gaggle of Tough on Crime politicians—backed by radical feminist lawyers and politically connected groups like the National Organization for Women—dismissed their concerns in favor of creating new federal crimes and centering solutions on courts and police.

The VAWA was part of a carceral feminist agenda that said "that battered women had a right to state action. But it was one kind of state action—arrest," as Aya Gruber writes in The Feminist War on Crime. "Within short order, this right became compulsory, and a battered woman could not waive the 'right' to her husband's arrest."

Some VAWA grants were conditioned on recipients encouraging an arrest during all domestic violence calls—no matter what the alleged victim's wishes are—and helped spur dual arrest of both partners if the abused party fights back.

A major part of the VAWA (involving civil lawsuits) was declared unconstitutional. But Biden promised on his campaign website to bring it back anyway, declaring that "the Supreme Court got it wrong."

The New VAWA

The latest VAWA "reauthorization" —which passed the House in March—is full of new expansions, including what Democrats keep referring to as "closing the boyfriend loophole."

Under current federal law, it's illegal to possess a gun if you've been subject to a restraining order against an intimate partner or have been convicted of a misdemeanor crime of domestic violence.

A misdemeanor crime of domestic violence includes threats, force, or attempted force, under which force doesn't necessarily mean violence and can include "offensive touching." Domestic violence "is not merely a type of 'violence'; it is a term of art encompassing acts that one might not characterize as 'violent' in a nondomestic context," wrote Justice Sonia Sotomayor in the Court's 2014 opinion on the matter.

As it stands, the domestic violence/intimate partner provisions only apply to acts involving spouses, domestic partners, and people who have a child together. Democrats want to expand them to cover people in all sorts of sexual or romantic relationships.

The new bill would expand the term intimate partner to cover "a dating partner or former dating partner." It defines dating partner as "a person who is or has been in a social relationship of a romantic or intimate nature with the person."

This would massively expand the reach of the law, and the federal government's prerogative to get involved. It would allow the feds to punish girlfriends and boyfriends convicted of everything from serious violence to mere "offensive touching." And it doesn't just stop there, as Reason's Jacob Sullum explained back in 2019 (when similar provisions were up for consideration):

Under current law, people subject to [protective] orders may not possess guns, but only when they have had an opportunity to contest claims that they pose a threat.

The House bill would expand the disqualification to ex parte orders, which are issued without a hearing, can last a few weeks, and may be renewable after that. That change should trouble anyone who cares about due process, since it takes away people's constitutional rights based on allegations they have had no chance to rebut.

Another provision of the House bill is even more far-reaching. It would permanently deprive someone of his Second Amendment rights if he has been convicted of misdemeanor stalking, a crime that need not involve violence, threats, or even a victim the offender knows.

Protecting Women?

Proponents of these new rules say they're about protecting women. But will men who aim to commit violence against women really stop just because they can't legally purchase a new firearm? There are other ways to commit violence—and other ways to get guns. People intent on murder aren't generally put off by having to illegally obtain the murder weapon.

Even some proponents of the law when it comes to domestic partners don't seem so sure about its expansion. "Everyone agrees that a firearm in a household with domestic violence poses a clear increased danger to the abused partner," University of Wyoming law professor George Mocsary told PolitiFact. But no reliable evidence shows "that there is a similar increased danger" in non-cohabitation scenarios.

Meanwhile, there is some evidence that provisions of VAWA and other tough-on-domestic-violence policies—like mandatory arrest and/or prosecution in domestic violence cases—have led to a spike in girls and women being arrested and prosecuted. Some of this may be warranted, but some of it is targeted at women merely trying to protect themselves; it's not uncommon for abusers to accuse their victims of abusing them for fighting back or for reacting in minor physical ways to intimidation and similar non-physical slights. And in a world where "offensive touching" qualifies as domestic violence, they may technically be right.

Which means a lot of women and abuse victims would have their right to own a firearm for protection taken away. And unlike people intent on threats and violence, they're probably a lot less likely to go through illegal channels to get one—which means laws like these could make it more difficult for women to protect themselves.

These laws would also give law enforcement another reason to harass and discriminate against people of color, people in poor communities, and others who tend to wind up disproportionately targeted by the police. Not only are already marginalized groups liable to bear the brunt of enforcement for "dating violence," and to thus be unevenly excluded from legally owning a gun, they'll also have new opportunities to be guilty of a federal firearms offense (and the feds will have a new excuse to monitor these people and communities).

This isn't the only new gun prohibition Biden wants—he's also proposing a ban on "ghost guns." And there's another new prohibition in the works; allegedly, the administration is considering a crackdown on menthol cigarettes.

The Biden administration sometimes talks a good game about criminal justice reform. But at the same time, the administration just keeps pushing the same old triggers for mass incarceration and police abuse, disguised in different packages. It suggests neither Biden nor Vice President Kamala Harris has actually learned anything since their ardent crime warrior days except which messages it's most popular to pay lip service to these days.

FREE MINDS 

Criminalizing prostitution harms sex workers, their children, and public health. Check out the Cato Institute's new brief on the unintended consequences of criminalizing sex work. Researchers Lisa Cameron, Jennifer Seager, and Manisha Shah find that "criminalizing sex work increases STI rates among sex workers (measured using biological test results) by 27.3 percentage points, or 58 percent, from baseline," that "the health consequences of criminalization are not restricted to sex workers," and that "children of women from criminalized work sites are adversely affected."

FREE MARKETS

California already tried Biden's ghost gun ban and it didn't work, as Reason's Brian Doherty points out:

California is ahead of Biden's game in banning ghost guns, having since 2018, as the Center for American Progress summed up, "require[d] all self-assembled firearms to contain a unique serial number from the California Department of Justice. Furthermore, owners of newly serialized firearms must provide identification information to the California Department of Justice. Under California law, self-assembled firearms cannot be sold or transferred."

At the same time, California has remained a place media calls on to scare you about the still growing threat of ghost guns, such as the claim made to ABC News last year by Carlos A. Canino, the special agent in charge of the A.T.F. Los Angeles field division, that "Forty-one percent, so almost half our cases we're coming across, are these 'ghost guns." Last year was two years after California banned them in just the way Biden plans to. Not a promising sign for the efficacy of his bold initiative.

More here.

QUICK HITS

• The FBI searched Rudy Giuliani's home and office and seized his electronics yesterday.

• Biden said his new spending plans will be paid for in part by targeting corporate tax scofflaws—firms that paid $0 in corporate taxes. But "tax experts are not sure whether Biden's plan would in fact substantially reduce the number of large corporations paying zero dollars in federal income taxes," says The Washington Post.

• "As part of a $2.3 trillion infrastructure proposal, President Joe Biden is pushing Congress to spend $100 billion fixing a problem that mostly doesn't exist: widespread lack of access to broadband internet," writes Reason's Eric Boehm.

• Are politicians finally starting to come around about civil asset forfeiture? In Arizona, at least, the answer appears to be yes:

• A new law in Colorado called the Ranch to Plate Act "deregulates meat sales that are made directly to consumers," explains Food Safety News.