Domestic Violence, Mental Illness, and Guns: A Dangerous Combination

At the conclusion of writing my thesis, I was relatively optimistic about the future of gun control reform in America, probably more so than many people. I thought that the 2012 Sandy Hook shooting, the death of so many school children, would be horrifying enough to put Americans and politicians into enough shock to finally move forward with policy reform. President Obama’s formation of a gun policy task force within his Cabinet was an important step forward. However, Congress still continues to be deadlocked on this issue. While Congress chooses not to act on gun control reforms, people continue to die from gun violence. Mass shootings have continued to occur as a result of mentally disturbed individuals, and in the home women and children are still being victimized by men with guns.

An example of the horror of domestic gun violence that occurs in this country recently happened in my state of Maine. Called by state police as “‘one of the worst cases of domestic violence in Maine’s history’,” Heather Smith and her three children were killed by her husband Joel using a pump-action shotgun before killing himself on July 26^th. The likelihood that a woman is killed by her abuser increases five times if he has a gun. Also unsurprisingly, most intimate partner violence in the U.S. that ends fatally involves a gun. There is a clear correlation between states with lax gun laws relating to domestic violence and the number of intimate partner homicides using a gun. As you can see below, Maine is one of the states with the highest percentage in the first figure and one of the states on the far right in the second figure. 

Source: Mother Jones

Source: Mother Jones

There is no evidence that the Heather Smith had taken any protective court orders against her husband or there was a history of abuse. But it is likely that even if Heather had, her husband still would have been able to have access to guns since there is a relationship between lax domestic violence laws and access to guns. An example of this relationship and the problems with the U.S.'s domestic violence gun laws are illustrated by a domestic violence killing that came not long before the one in Maine. Earlier in July a man in Texas, Ronald Lee Hassell, killed four children and the two parents of the same family, the woman being his former wife, Katie Stay.  

The killer had been arrested once before for domestic assault in 2008 while living in Utah with Katie at the time, but the charges were dropped after he accepted a plea deal. It is possible that his 2008 conviction did not prohibit him from having guns because he was charged with “simple assault” and not domestic violence, according to Laura Cutiletta, a staff attorney at the Law Center to Prevent Gun Violence. But according to Chelsea Parsons, director of crime and firearms policy at the Center for American Progress, his simple assault charge in 2008 should have meant he was prohibited from owning guns, but since he entered a plea deal and he committed no crimes in the following 8 months, he was able to own guns. Then in July 2013, Katie filed a protective order against him in Utah, but she moved away and filed for divorce a month later. This protective order should have prevented him from owning guns, but as part of the divorce and custody procedures, the protective order was converted to a mutual restraining order, which did not prevent him from owning guns. Cutiletta says that the mutual restraining order could have made him eligible for gun possession prohibition, but since it comes under the divorce decree and not the domestic violence statute, it is likely the information would not have been communicated to the FBI to be included in the background check system when purchasing a gun. 

These domestic violence killings and the laws surrounding them show the confusing, convoluted, and hole-ridden nature of American domestic violence laws in relation to guns. Fortunately there is some hope that American politicians are recognizing that reform in this area is necessary. On July 30^th the first ever senate hearing on domestic violence commenced, petitioned by Former Congresswoman Gabby Giffords (D-Arizona), the famous gun violence survivor of the 2011 Tuscon Shooting and now gun control advocate. She petitioned to Senator Patricky Leahy (D-Vermont) of the Judiciary Committee who headed the hearing. The hearing’s focus was on gaps and weaknesses in American laws and background check system that allow known abusers to gain access to guns. 

Gabby Giffords and her husband, Mark Kelly, started Americans for Responsible Solutions, a nonprofit aimed "to encourage elected officials to stand up for solutions to prevent gun violence and protect responsible gun ownership."  Source: www.commongunsense.com

Multiple Democratic Senators have proposed legislation that enlarge the definition of domestic abuse under federal law to stalkers and non-married dating partners. It also prohibits guns from abusers under temporary restraining orders, since current law only covers permanent orders. In Australia, people with domestic violence histories also cannot have guns. The following is one of the grounds on which a firearms licence must be denied in all parts of Australia as defined in the 1997 National Firearms Agreement:  "Specific reasons—applicant/licence holder has been the subject of an Apprehended Violence Order, Domestic Violence Order, restraining order or conviction for assault with a weapon/aggravated assault within past five years." 

However, the definition of who can be a domestic abuser in Australia is much more broad than in the U.S.  For example, in the Australian state of New South Wales, the definition of "domestic relationship" under the Crimes (Domestic and Personal Violence) Act 2007 says that one does not need to be married or had been married to the person to be considered a person that is legally eligible to be a domestic violence offender or victim. As a result, a broad group of people are eligible to commit domestic violence offenses and thus eligible to lose their gun licences.

In the U.S., domestic violence is still considered to be between spouses. People who have committed a domestic violence offense against another who they were never married to, lived with, or had a child with are not forced to forego their guns. For example, dating partners who have committed a domestic violence misdemeanor, in all but 9 states, are allowed to keep their guns. If you have been convicted of misdemeanor stalking, you are allowed to have a gun under both federal and states' laws. If the person is convicted of felony stalking instead, only at that point he is then prohibited from guns.

In Australia, this surely would not fly. In New South Wales, an Apprehended Violence Order allows for an individual to gain protection from forms of violence that is not covered under federal law in the U.S., such as stalking and harassment. In New South Wales there are two types of Apprehended Violence Orders:

"1. An Apprehended Domestic Violence Order - used when there is a domestic relationship between you and the other person e.g. partner, relative, house member etc.

2. An Apprehended Personal Violence Order - used when there is a not a domestic relationship between you and the other person - neighbour."

It is extremely important that the U.S. updates its old fashioned definition of domestic violence to fit the current times. The majority of domestic violence offenders today are dating partners, not spouses. Between 2003 and 2012, 39% of nonfatal violence against women was perpetrated by a current or former dating partner, while 25% was a current or former spouse.  In 1980, 69% of intimate partner homicides were perpetrated by spouses and 27% by dating partners, but in 2008, 49% were carried out by a dating partner versus 47% by a spouse. The marriage rate in the U.S. reached a historic low last year, and surely these numbers are reflective of a changing social environment. Since less people are getting married, it is imperative that laws are changed to reflect this change in our social environment.

Although it is hopeful that this Senate hearing has been held on domestic violence, it is yet to be foreseen whether there will be any big outcome from it. Sadly the news surrounding it when it occurred was minor, and there is no news to be found of any of it outcomes yet.

As loopholes and weaknesses are a key aspect of domestic gun violence, they are also exactly the problem when it comes to the relationship between gun violence and mental illness. For one, our federal background system’s mental health information is simply incomplete and incomprehensive due to the challenges of state health privacy laws.  Many states have not provided records because states’ mental health, patients’ rights, and privacy laws prohibit disclosure. A point of comparison that I did not touch on in my thesis between Australia and the U.S. was this difference of mental health records reporting.  Is there something about the Australian legal system that allows for better mental health record reporting? 

Seemingly the difference could be a difference in privacy laws, using the example of the state of Victoria in Australia. Section 120A of Victoria's Mental Health Act 1986 governs the disclosure of health information by mental health services. Under this Section there are exemptions allowed by the Minister of Health for types of information that can be disclosed. This information must be considered “necessary in the public interest.”  One of these exemptions is information communicated from certain types of health professionals to the Victoria Police about people who are unfit to own a firearm. These health professionals have statutory immunity when it comes to this type of information. Health professionals in the U.S. should also have the same immunity. Changes need to be made in our health privacy laws to ensure that this information can be legally communicated to our federal background check system.

While the inability to provide mental health information to our background check system is one aspect of the problem, there is also the issue of individuals who have not yet been deemed to have a mental illness because they have not yet been treated. In the time before there is official recognition of a person’s mental illness, the individual can gain access to a gun and commit a mass shooting. There are multiple examples of this in our mass shooting history: Eliot Rodger and the 2014 Isla Vista shooting, Jared Lee Loughner in the 2011 Tuscon Shooting, Adam Lanza in the 2012 Sandy Hook shooting, and the list goes on and on…

A way in which to prevent gun access for individuals not yet formally deemed to have a mental illness is through a “gun violence restraining order” or GVRO. State legislators in three states have introduced bills that allows a person to petition a court for a GVRO if it is believed that the person poses a significant risk to themselves or others by possessing guns. I personally think the GVRO is a great idea.  Not only would it bring a person’s condition to the Court’s attention so that the person can be legally prohibited from possessing guns, but it would bring a person’s mental problems out and into the open and jump start the process of getting the person professional help. For whatever reason the person has not obtained mental health help prior, but surely the Court will order that the person undergo treatment once it has been brought to the Court’s attention. 

Interestingly Australia is not only a model for the U.S. in terms of gun control overall, but also a model for mental health research and training. A program that has originated in Australia has come to our shores and has been endorsed by President Obama. Mental Health First Aid is an organization that began in Australia in 2001 by a psychologist and his wife, whom developed a program for early identification and intervention of mental health illnesses. In 2008 Mental Health First Aid came to the U.S. and since then the number of people trained has been growing across the country, now more 100,000 trained people country wide. 

After the Sandy Hook shooting, Obama called for Mental Health First Aid training to be given to teachers and staff. The Mental Health First Aid Act of 2013 has passed in both the Senate and the House which would give $20 million in grants to train individuals of the community, such as law enforcement, educational organisations, parents, and students. Also in Congress’s 2014 budget, there are two grant programs for state and local education agencies to carry out the training. Hopefully in the absence of a movement on gun control reform in the U.S., at least as a country we can move forward with Mental Health First Training country wide to help people recognise mental illness and get people the help they need before they hurt themselves or someone else, whether it is with a gun or not.

Source: livingisforeveryone.com.au

Overall legal barriers are currently the biggest hurdle preventing  the U.S. from having gun laws that comprehensively prohibit domestic violence offenders and mental illness sufferers from doing hurt with guns. Some of our laws must be changed to fit the present times and in the interest of public safety. The scope of domestic violence must go beyond the meaning of married couples. Although health privacy is a valued individual protection, exceptions must be made to protect many when one's health has the potential to do great hurt to many. As I believe we should look to Australia for a model to improve our gun control laws, I also believe we should also look to Australia to improve our legal definition of domestic violence and health privacy.  

Written by: The American.