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I read in the New York Times that the US Congress is trying to fix the "Boyfriend loophole" in gun purchase restriction laws after domestic violence convictions. They note that individuals who have a "dating relationship" would also be included. To me, this sounds very vague, and the article also describes the difficulties lawmakers have been having with the definition issue.

I found this draft of the bill. Here is an except:

(a) DEFINING DATING RELATIONSHIP
(37)(A) The term ‘dating relationship’ means a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.
(B) Whether a relationship constitutes a dating relationship under subparagraph (A) shall be determined based on consideration of—
(i) the length of the relationship;
(ii) the nature of the relationship; and
(iii) the frequency and type of interaction between the individuals involved in the relationship.

This seems to remain quite vague. Obviously this hasn't become law, but for the sake of this question, let's assume it does.

Thus, my questions are 1) who decides whether two individuals have a "dating relationship" and 2) is there any useful precedent to help guide the decision maker?
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  • 1
    One obvious concern is whether the determination of whether a defendant was in a "dating relationship" with the complaining witness is made at time of trial or sentencing (and thus, a person can tell whether he is barred from possessing a firearm by reading his conviction record), or whether a determination that he was in a "dating relationship" can be made years later in a trial for unlawful firearm possession. Jun 22 at 17:47
  • 1
    A couple of lines down the draft mentions "(b) NO RETROACTIVE APPLICATION.—The amendments made by subsection (a) shall not apply to any conviction of a misdemeanor crime of domestic violence entered before the date of enactment of this Act." However, I agree that there still seems to be the opportunity for "surprises".
    – Ian
    Jun 22 at 17:51
  • I would think that a conviction of a violent crime would be enough to justify preventing someone from buying a deadly weapon altogether, not that we should try to draw a line with the express purpose of allowing some of those people to buy deadly weapons. But this is America, I guess.
    – NotThatGuy
    Jun 23 at 13:26
  • @NotThatGuy As one of the late night comedians said, this may not be everything we want, but it's something, and something is better than nothing. Even David Hogg (one of the Parkland survivors who has led the "March for our Lives" efforts) is encouraged by this effort (assuming something passes).
    – Barmar
    Jun 23 at 14:06
  • 1
    @Barmar Yes, something is better than nothing. It's just concerning/depressing that a significant amount of people are actively fighting so that some violent criminals can still buy deadly weapons.
    – NotThatGuy
    Jun 23 at 14:14

3 Answers 3

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The court decides and there is precedent

This type of definition is very common and the legislative intent is to give the court discretion to decide whether the particular relationship in the particular case is a “dating relationship”.

The precedent for these is that the rules of statutory interpretation apply, primarily, what does the law say on plain reading?

Well, this law gives three facts that need to be determined from the evidence (those in part B). When those facts are known, considering them as a totality, is it “continuing serious relationship of a romantic or intimate nature” and is it ongoing or “recent”.

Once a court of record decides this for a case, that will set a precedent for similar fact patterns. That is, if the facts are close in another case, the result of whether it is or isn’t a romantic relationship will follow from the precedent. Other cases with dissimilar facts will set different precedents. In that way the woolly line will get more clear as individual cases are decided.

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To some extent it depends upon how the issue presents procedurally.

One way it could present is that the conviction is put into a gun purchase background check database, the convicted individual disputes the denial and brings a suit in court to declare that the conviction does not qualify for the background check database, and it is decided, either on paperwork and affidavits in motion practice, or following an evidentiary hearing about the nature of the underlying conviction, before a judge, who looks at the statute and interprets it. Ultimately, as applied to the fact the court would set forth the facts that the judge believes to be relevant and make findings of fact to support a conclusion of law that it does or does not apply based upon the evidence presented.

Another way it could present is that someone sells the person who was convicted a gun without doing a background check, and then the person who purchased the gun (or the person who sold it, or both) is prosecuted criminally, and then it goes to a jury trial if that element is disputed. At that point, the jury gets a jury instruction tailored to the instruction and slightly customized to the facts of the case (e.g. inserting the names of the people alleged to be dating and reworded to be grammatical in the context of a jury instruction), and the jury decides. The jury's determination on guilt, which would haves as one element that a prior conviction was based upon a dating relationship, would be upheld if there was any evidence presented at trial upon which the jury could have reached that conclusion.

Counsel for either party could push for further clarification of anything ambiguous about the statutory language in a jury instruction, but this language is clear enough to meet a "void for vagueness" challenge to its constitutionality.

Precedents would come into play primarily in arguing on appeal whether the evidence at trial, viewed in the light most favorable to the person who won at trial, could cause a reasonable juror to conclude that a dating relationship was present. Those precedents would probably largely draw on cases reviewing on appeal convictions for domestic violence offenses in the states where a dating relationship is one of the elements of the crime (I strongly suspect that the language in the statute copies a definition from a state statute in some U.S. state that does just that.)

Like every definition, there would be edge cases, which is why we need judges and jurors to make these calls. But, I suspect that the early cases could involve the stereotypical heartland cases where there is little serious room to dispute the existence of a dating relationship.

Honestly, while there are lots of questions I worry about the ability of a jury of ordinary people to decide because they may not understand the legal concept that is at issue, this is not one of them.

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Even though the definition is just part of a draft, there is precedent for the definition in Texas law.

Section 71.0021(b) reads:

(b) For purposes of this title, "dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.

An example of a case involving this definition is Rodney Kevin COLEMAN, Appellant v. The STATE of Texas:

The decision explains:

The State played for the jury the recording of a November 5, 2017 phone call Appellant placed to Complainant from the Harris County Jail to establish that he and Complainant had a dating relationship. Appellant contends this recording constitutes insufficient evidence to show a dating relationship because neither he nor Complainant "(1) stated how long they had been together or whether there was [an] upcoming ‘anniversary,’ (2) referred to each other as girlfriend, boyfriend, fiancee, husband or wife, or indicated that they had a ‘dating relationship,’ or (3) revealed the frequency or type of interaction between them in any terms." Appellant argues that, although Complainant and Appellant called each other "sweetie" and stated they loved and missed each other, "[i]t is not uncommon for complete strangers to refer to each other as ‘sweetie’ or for casual acquaintances to say they ‘love’ each other or ‘missed’ each other. People might say they love and miss a neighbor who's moved away, or anyone for that matter, without having been in a ‘dating relationship’ with them." According to Appellant, the evidence at most proves that the relationship was "a casual acquaintanceship or ordinary fraternization in a business or social context."

We reject Appellant's argument because the evidence is legally sufficient to establish that Appellant and Complainant had a dating relationship. Appellant and Complainant did not refer to each other as girlfriend and boyfriend or explicitly state they had a dating relationship during their phone call. However, from the content and tone of their conversation, the jury reasonably could have (1) concluded that Appellant and Complainant had an intimate, romantic relationship and (2) rejected Appellant's contention that they were just friends, neighbors, or casual acquaintances.

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