Captain America was, quality-wise, pretty much the polar opposite of the last movie we reviewed. There are two legal issues we’d like to touch on, both of which come up early in the movie. Still, these are technically spoilers.
I. Falsifying Your Enlistment Form
Steve Rogers is desperate to enlist in the Army, but he has a range of health conditions that make him unfit for service. Since Rogers seems constitutionally incapable of giving up, he attempts to enlist five times, each time claiming to be from a different city. The movie suggests this is a crime, but would simply lying about where you’re from be enough?
To find out, we dug up a copy of the Selective Training and Service Act of 1940 (2MB PDF). Although the Act is primarily concerned with the draft (which was well under way and which Rogers would have had to register for), it includes a provision allowing for voluntary enlistment. As such, we believe it would apply in this case. The key provision for our purposes is Section 11:
“Any person … who shall knowingly make, or be a party to the making of any false, improper, or incorrect registration, classification, physical or mental examination, … induction, [or] enrollment … shall, upon conviction … be punished by imprisonment for not more than five years or a fine of not more than $10,000 or by both such fine and imprisonment.”
There is no general federal attempt statute, so for Rogers to be guilty under this section he would actually have to complete the offense, since the law does not criminalize attempting to falsify one’s registration (it does criminalize making a false statement when trying to avoid service, but Rogers wasn’t trying to avoid anything). We may presume that Rogers told the truth when he registered for the draft and only lied when trying to enlist voluntarily. Rogers’s final and successful enlistment was also truthful: Rogers confesses to Dr. Erskine that he is actually from Brooklyn. So the question becomes: were any of Rogers’s classifications or examinations “false, improper, or incorrect?”
The answer here is arguably “no.” He was truthfully, properly, and correctly classified 4-F (i.e. unfit for service) and the content of his physical examinations were likewise accurate (hence the 4-F). Arguably any subsequent draft registrations would be false, but since he was trying to enlist voluntarily rather than re-register for the draft, he is probably in the clear here as well.
On a final note, the general federal false statements statute (18 USC 1001) was not enacted until June 25, 1948, so that would not apply (and it’s debatable whether Rogers’s false statements were “material” for purposes of the statute anyway). The Articles of War (the predecessor to the UCMJ) contained a provision prohibiting fraudulent enlistment Article 54, but that only applies to someone once they have enlisted, and Rogers’s actual enlistment was honest.
So in summary: Rogers definitely skirted some lines, but we think he’d have a good case for not having actually broken the law, especially since his false statements weren’t about something the Army probably cared much about anyway.
II. New Drugs and Human Testing
We’ve talked a bit about the process by which new drugs are approved in the context of the movie Limitless. In general the process was similar in the 1940s, since the Food, Drug, & Cosmetic Act was passed in 1938 and described basically the same approach to new drug testing. And although Rogers did not give completely informed consent (Erskine only hinted at the side effects of the early version of the serum), he was at least a volunteer and understood some of the risks. Furthermore, it’s doubtful he would have refused to volunteer even if he did know all of the risks. At a minimum it was far from the worst thing the government was doing at the time. However, it’s arguable that the FD&C Act would not have applied at all, since the serum was not being introduced into interstate commerce.
The FDA aside, the current regime for human testing was really only instituted in the 1970s. In particular, the Institutional Review Boards which form the core of ethics oversight in human testing were formed in response to regulations authorized by the National Research Act of 1974. So a lot of the reasons why something like Erskine’s project would be illegal or at least problematic simply didn’t exist in the 1940s.
One other issue is that Erskine’s work was based on work he did under the Nazi regime. This, too, is entirely plausible. The early US space program was led by the German scientists who developed the V-2 rocket, and the results of several monstrous Nazi (and Japanese) experiments on human subjects have since been used by medical researchers for humane ends. There is no evidence from the film that Erskine’s research was ethically problematic, and so it is even more believable that the military would have had no qualms about continuing it despite its murky origins.
Captain America was a good movie, and the legal issues were handled very well. Although we disagree with the movie about whether Rogers actually committed a crime by lying on his enlistment form, that really only makes him a better embodiment of America. After all, not only was he innocent, but he was following the letter of the law while disregarding its spirit. And what could be more American than getting off on a technicality?