When Is A Girlfriend ‘Similarly Situated’ To A Spouse?

Written on 05/13/2022
Will Aitchison

Section 922(g)(9) of Title 18 of the United States Code makes it a felony for an individual who has been convicted of a “misdemeanor crime of domestic violence” to possess a firearm. At the time the law was enacted, only about a third of the states had a criminal statute that specifically proscribed domestic violence, and domestic abusers were usually pros­ecuted under assault and battery laws.

To deal with the wide variety of state laws, Congress defined a misdemeanor crime of domestic violence as certain crimes committed by “a person who had a specified domestic relationship with the victim.” More specifically, Congress defined a crime of domestic violence as one involving the use or threatened use of physical force or a deadly weapon by (a) a current or former spouse; (b) a person who is cohabitating with or has cohab­itated with the victim as a spouse; or (c) a person similarly situated to a spouse of the victim. The question of what types of relationships fall within the definition of “similarly situated to a spouse” was the subject of a recent decision from the California Court of Appeals.

The case involved Anthony Hernan­dez, a California corrections officer, who was convicted of misdemeanor domestic violence after an incident on October 25, 2015, when police responded to a call from his girlfriend’s home. She reported that, during an extensive fight that involved her locking herself in the bathroom and sending text messages seeking help, Hernandez had three times straddled her while she was lying on her back, placed both hands around her neck and lifted up and down so she could not breathe or talk. Upon his arrest, Hernandez told the police that “he and his girlfriend have been together for approximately six months” and that he “lives with her for four to five days per week.”

The California Department of Cor­rection and Rehabilitation then terminat­ed him from his position as a corrections officer. The Department stated that, be­cause of his domestic violence conviction, federal law prohibited him from carrying a firearm, which he needed for the job.

Hernandez argued that his rela­tionship with his girlfriend did not fall under the rubric of “similarly situated to a spouse.” The Court disagreed. The Court began by noting that “applying the ‘similarly situated to a spouse’ prong, five federal appellate courts have held that an assault against a ‘live-in girlfriend’ qualifies even absent any additional facts about the relationship. That is, the cases do not require that the couple had a long relationship, shared finances, or intended to marry.

“With it firmly established that a live-in girlfriend of any duration is ‘simi­larly situated to a spouse,’ it is a strain to distinguish the relationship in this case. If Hernandez and his girlfriend spent four or five nights together weekly over five months, they would have spent perhaps 80 to 100 nights under the same roof. The question for us today is whether federal courts would distinguish such a relation­ship – where the couple has kept separate residences – from a relationship involving a live-in girlfriend. Does that difference make a couple not ‘similarly situated’ to spouses for purposes of Section 922(g)(9)?

“Under the existing federal case law, a domestic violence victim may be found ‘similarly situated to a spouse’ so long as the couple has a sexual relationship that involves regularly spending the night to­gether. There may well be some overnight relationships too fleeting to qualify; we would have reason to conclude that a sin­gle-night tryst is insufficient. But we do not have such a short-lived relationship here, as the undisputed evidence is that Hernandez spent most nights with his victim for at least five months.

“Our charge here is only to determine whether the Department abused its discre­tion in finding that Hernandez’s relation­ship qualified for his domestic violence crime. The existing federal case law supports that determination. Not surprisingly, then, those who agreed with the Department’s action included the state Department of Justice; the federal Bureau of Alcohol, Tobacco, and Firearms; an administrative law judge; and the trial court. We agree.”

Hernandez v. State Personnel Board, 2021 WL 487886 (Cal. Ct. App. 2021).

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