When the Violence Against Women Act (“VAWA”) expired in February of 2019, Congress almost immediately began the process of reauthorizing, amending and expanding the scope of the Act. Just as quickly as they had begun these efforts, the amendments to VAWA provoked opposition from gun rights groups. But, why is there so much controversy surrounding these amendments, and are the concerns of groups like the National Rifle Association (“NRA”) well founded? Based on my reading of the law, my understanding of how the law interacts with state laws, and my experience with Illinois orders of protection, I believe there is legitimate cause for concern. Of course, my concern is not limited to the VAWA. Both the VAWA and the Illinois Domestic Violence Act of 1986 (“IDVA”) contain very similar provisions that can undermine the rights of citizens under some questionable circumstances. I suspect that the reason that the VAWA is drawing so much controversy now is because it is continually broadening the circumstances whereby a citizen can lose his/her 2nd Amendment rights. Before I continue this analysis, let me emphasize that the purpose of this post and the focus of this blog, in general, is not primarily political advocacy. There are plenty of forums that address the gun control/gun rights debate, and those forums serve an important and worthy function. However, the purpose of this post is to highlight the very serious legal implications of reauthorizing the VAWA and how the VAWA already interacts with Illinois law. Far too often, contentious political debates overshadow important discussions about our laws and how they affect the rights of individuals. Such is the case with the VAWA. Just taking a brief look at the articles and coverage available on the subject, one can see that this issue is being falsely characterized as a pro-woman vs. anti-woman issue. And, those who oppose the bill are being falsely characterized as unsympathetic to victims of domestic violence.[i]  Sadly, what is lost in all this political analysis is that these laws contain some very consequential remedies. And frankly, I don't think most politicians (and many lawyers) understand how these provisions work in real court settings. In the paragraphs below, I attempt to give the reader a sense of how these laws actually work when applied in real life court situations.

Another thing people should keep in mind when they read about this issue is that VAWA, like many other acts of Congress, contains provisions that are not even related to the main issue of the bill (i.e. domestic violence). For instance, under the new amendments, there is a whole section that deals with the issue of placing transgender prisoners among prison populations matching the gender with which they identify. [ii]  By adding these contentious social issues to the bill, the drafters of these amendments make it hard for those who support the main purpose of the bill to vote for its passage. Such controversial social issues should be debated separately in separate bills. Additionally, the act is replete with vague terms and concepts. Under the “technological stalking” section, you have definitions that encompass conduct that is arguably not criminal. [iii] Apparently, offering an “unwanted” social media post that causes “emotional distress” can be deemed stalking. [iv]  One doesn't have to have an active imagination to see how this provision can be abused to undermine free speech. Now, while all of these amendments are concerning, they are not the most egregious part of the VAWA. VAWA, even aside from the proposed amendments, contains problematic provisions. Specifically, the terms and application of the VAWA coupled with provisions of the IDVA create a situation where an Illinois resident can potentially be barred from possessing a firearm without even being convicted of a crime.

VAWA AND “ORDERS OF PROTECTION” or “PROTECTIVE ORDERS”

At this point, it is important to pause and understand how VAWA works in its unamended form. My biggest problem with VAWA is how it interacts with what are called “protective orders” or “orders of protection” under the IDVA. Basically, VAWA prohibits anybody who is subject to one of these “protective orders” issued in any state or territory from possessing a firearm. [v]  The problem with these “protective orders” or “orders of protection” is that they can be obtained in non-criminal proceedings which do not require that claims of abuse by a spouse or partner be proven beyond a reasonable doubt. In Illinois, a petitioner can obtain an order of protection against a respondent under the terms of the IDVA (said order qualifies as a “protective order” under VAWA as applied against a spouse or “intimate partner”). [vi]  And IDVA requires only a preponderance of the evidence standard when imposing an order of protection.[vii] When it was drafted, the purpose of the law was to help battered women obtain protection from the courts without having to endure the rigors of a criminal proceeding. While that goal was noble and has doubtless provided genuine help to victims since it passage, it has also put respondents in the position of losing important constitutional rights without being convicted of a crime. In fairness, I should point out that even without the VAWA, a citizen of Illinois could still lose his/her gun rights under the IDVA. Under IDVA, an Illinois court must make specific findings as outlined in the Act in order to dispossess a citizen of firearms. [viii] The findings include that the respondent is a “credible threat” and that the terms of the order expressly forbid the imposition of bodily harm on the petitioner. [ix] In order to dispossess a citizen of the right to possess firearms, the Illinois court must also specifically order this remedy. In contrast, under the VAWA, a respondent is automatically forbidden from possessing firearms provided the state court enters a protective order that lists the specific findings described above and gives the respondent an opportunity to be heard. [x] The findings that must be made under the VAWA and IDVA are identical. But, under the IDVA, a court has the authority to balance hardships before imposing such a serious remedy. [xi] The, VAWA on the other hand, is a little bit more aggressive in that it has the effect of automatically dispossessing a respondent of his/her 2nd amendment rights provided these findings are made.  Regardless, both IDVA and VAWA create a regime whereby a citizen can lose the right to possess a firearm without being convicted of a crime. The prohibition on possessing a firearm is supposed to last as long as the order of protection lasts. [xii] So, hypothetically, if the IDVA court imposes a two-year order with the required findings, the respondent must refrain from possessing firearms for the duration of that order.

OTHER REMEDIES UNDER THE IDVA

To be clear, it is not just gun rights and the interactions with VAWA that are at issue with the IDVA. From the point of view of an Illinois practitioner, the IDVA's remedies are consequential aside from any of the terms of the VAWA or any gun possession issues. There are a bunch of serious remedies that can affect respondents under the IDVA. Respondents can be dispossessed of their home, ordered to pay various damages, ordered to not have contact with their children, etc. [xiii] And, like all court proceedings, these cases are searchable public records which can affect job prospects, relationships, etc. Even though the remedies offered under IDVA do not include incarceration or a criminal penalty (unless you violate the terms of the order), there is a great deal of stigma attached to these orders. Technically, the courts issuing these orders are civil courts, but they feel more like criminal courts without the evidentiary rigors of a criminal court. I have represented both men and women in these courts, and I have assisted both petitioners and respondents. In my opinion, it is far too easy to obtain one of these orders given the very serious implications of being subject to such an order.

EMERGENCY ORDERS OF PROTECTION

A petitioner, under circumstances prescribed in the IDVA, can obtain an emergency order of protection ex parte (meaning without the respondent present), and without even obtaining service of process on the respondent. [xiv] Granted, these orders are only temporary (21 days duration), and the respondent must be served before longer orders can be imposed. [xv] Still, this is a very precarious situation for a respondent who has not even received service of process. And, even in emergency order situations, most of the remedies of IDVA apply. This includes the possibility that a court can specifically order a respondent to be dispossessed of firearms. That means without notice or a chance to appear, an Illinois court could potentially take away a citizen's 2nd Amendment rights. As of now, the VAWA does not apply to emergency orders of protection. [xvi] The current language of VAWA requires that a respondent have an opportunity to appear in court before the right to possess a firearm is revoked. [xvii]  But, this is one of the areas where the amendments to the VAWA cause so much controversy. Under the new changes to the VAWA text, the requirement that a respondent appear in court has been deleted. [xviii] Basically, that means that an emergency order of protection, entered ex parte, would be enough to automatically dispossess a respondent of his/her 2nd amendment rights. Again, this is not a huge difference from the IDVA other than that the VAWA's provisions are automatic whereas the IDVA requires the specific imposition of this remedy. However, under VAWA, this approach to emergency ex parte orders would now apply to all US states and territories. Thus, the objection of the NRA and others.

MISDEMEANOR STALKING UNDER VAWA

The proposed Amendments to VAWA also include a provision that forbids those convicted of misdemeanor stalking from possessing a firearm.[xix] While this doesn't concern me as much as the order of protection issues, it is still somewhat problematic. Such a serious remedy is usually reserved for those convicted of felonies. Currently, VAWA prohibits individuals convicted of misdemeanor domestic violence from possessing a firearm. [xx] This too can be a harsh remedy when you consider that a mere misdemeanor can lead to the loss of a constitutional right. Still, that provision at least involves individuals who are found guilty of violent conduct. In contrast, misdemeanor stalking charges in some states don't necessarily involve violence. Illinois has a fairly strict stalking statute whose elements include threatening conduct (this was not always the case) [xxi] . [xxii] Being convicted of stalking in Illinois is a serious matter, and thus, it is not entirely unreasonable that somebody would lose their gun rights over such a conviction. But this is not necessarily the case in every state and territory. For instance, Minnesota has a vague and overly broad stalking statute. [xxiii] I can envision all sorts of questionable circumstances where a person might be convicted under such a statute and in turn lose his/her gun rights needlessly (i.e. overzealous reporter or private investigator chasing a lead). Thus, concerns about constantly lowering the threshold whereby a citizen may lose the right to possess a firearm are not at all unreasonable.

EXPANDING THE DEFINITION OF AN “INTIMATE PARTNER” IN VAWA

Some of the remedies of the VAWA discussed above apply to “intimate partners” as defined under VAWA. The amendments to the VAWA seek to expand the definition of an “intimate partner” to include former dating partners or individuals who formerly cohabitated with each other. [xxiv] This is yet another provision that doesn't seem too drastic on the surface, but when considered carefully, should be a cause for concern. As drafted, the expansion of the definition of “intimate partner” will now allow the remedies described above to apply against former dating partners. Again, it does not take a wild imagination to see how this could be abused. Consider that a former disgruntled boyfriend or girlfriend (includes people who merely dated temporarily) can run to a court without effecting service of process and obtain a qualifying “protective order” against a former boyfriend/girlfriend and thus dispossess said boyfriend/girlfriend of his/her 2nd Amendment rights. Expanding the definition of “intimate partner” in this way pushes the VAWA way beyond the scope of its original purpose of protecting women in danger of domestic violence. This is yet another good reason to oppose the VAWA Amendments.

CONCLUSION

In conclusion, taking away fundamental constitutional rights should never be done carelessly. The language of the VAWA coupled with its proposed amendments and applied in conjunction with the IDVA, raise serious concerns about how easily one can be dispossessed of the right to bear arms in Illinois and in other states. The other remedies offered under IDVA should also cause concern when the low threshold for imposing a qualifying protective order is considered. Since citizens can already lose their constitutional rights under the comparatively loose standards of the VAWA and IDVA, the VAWA need not enhance the remedies it already has in place.  Protecting victims of domestic violence is a very worthy goal, but this can be done without jeopardizing a citizen's fundamental constitutional rights. I think we can and should come up with something that works better than the laws described above. 

[i] Debonis, Mike, “Democrats bill forces GOP to choose between NRA and protecting women” The Washington Post, 4 April 2019. Web. 26 April 2019.  https://www.washingtonpost.com/powerpost/house-backs-new-version-of-violence-against-women-act-with-expansion-of-gun-control/2019/04/04/29b011f4-56

[ii] Violence  Against Women Reauthorization Act, H.R. 1585, Title 11, §  1101, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019 https://www.congress.gov/bill/116th-congress/house-bill/1585/text

[iii] Violence  Against Women Reauthorization Act, H.R. 1585, Title 11, § 2, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019 https://www.congress.gov/bill/116th-congress/house-bill/1585/text

[iv] Violence  Against Women Reauthorization Act, H.R. 1585, Title 11, § 2, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019  https://www.congress.gov/bill/116th-congress/house-bill/1585/text

[v] 18 U.S.C. § 922 (d)(8)  (2018)

[vi] 750 ILCS 60, Illinois General Assembly, Legislative Information System.  http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[vii] 750 ILCS 60/205 (a), Illinois General Assembly, Legislative Information System.  http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[viii] 750 ILCS 60/214 (b)(14.5) Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[ix] 750 ILCS 60/214 (b)(14.5) Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[x] 18 U.S.C. § 922 (d)(8)(A)(B)  (2018) https://www.law.cornell.edu/uscode/text/18/922

[xi] 750 ILCS 60/214 (c) Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[xii] 750 ILCS 60/214 (b)(14.5) Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[xiii] 750 ILCS 60/214 (b) Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[xiv] 750 ILCS 60/217 Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[xv] 750 ILCS 60/217 Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000600HArt%2E+II&ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000

[xvi] Violence  Against Women Reauthorization Act, H.R. 1585, Title 8, §  802, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019 https://www.congress.gov/bill/116th-congress/house-bill/1585/text

[xvii] Violence  Against Women Reauthorization Act, H.R. 1585, Title 8, §  802, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019 https://www.congress.gov/bill/116th-congress/house-bill/1585/text

[xviii] Violence  Against Women Reauthorization Act, H.R. 1585, Title 8, §  801, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019 https://www.congress.gov/bill/116th-congress/house-bill/1585/text

[xix] Violence  Against Women Reauthorization Act, H.R. 1585, Title 8, §§  801-802, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019 https://www.congress.gov/bill/116th-congress/house-bill/1585/text

[xx] 18 U.S.C. § 922 (d)(9)  (2018)

[xxi] Resch, Richard, “Illinois Supreme Court Strikes Down Part of Two Stalking Statutes as Unconstitutional” Criminal Legal News, 19 April 2018, p.30 https://www.criminallegalnews.org/news/2018/apr/19/illinois-supreme-court-strikes-down-part-two-stalking-statutes-unconstitutional/

[xxii] 720 ILCS 5/12-7.3, Illinois General Assembly, Legislative Information System. http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K12-7.3

[xxiii] McMahon, Brian L., “Constitutional Law—Unreasonable Ambiguity: Minnesota's Amended Stalking Statute is Unconstitutionally Vague” William Mitchell Law Review, Volume 24, No. 1, Article 5, 1998, p. 189 https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1946&context=wmlr

[xxiv] Violence  Against Women Reauthorization Act, H.R. 1585, Title 8, §  801, 116th Congress, United States Congress, United States Copyright Office, Congress.gov, 10 April 2019https://www.congress.gov/bill/116th-congress/house-bill/1585/text