which addresses enticing or harboring military deserters, are not widely publicized in the same manner as civil rights or violent crime cases
. The statute is broadly worded and its enforcement has historically been applied through different contexts.
Early 20th century
The legal foundation for the modern statute goes back to a 1909 law. The original version was directed at civilians who encouraged desertion from military service. These laws were notably enforced during wartime, such as in World War I, to suppress anti-war and anti-conscription activism.
Vietnam War era
Enforcement actions under similar or related statutes were more common during the Vietnam War.
Widespread protest: The extensive anti-war movement of the era featured public appeals to soldiers to desert or resist service. While there were prosecutions under other laws, the threat of prosecution under laws like 18 U.S.C. § 1381 existed for those actively trying to undermine military service.
Conspiracy charges: In addition to direct enticement charges, activists were sometimes prosecuted under conspiracy statutes for organizing desertion or draft resistance, leveraging the same underlying criminal offense.
Modern enforcement and considerations
Recent enforcement cases related to 18 U.S.C. § 1381 are rare and typically involve individuals who are directly and knowingly assisting a specific deserter.
Focus on harboring: Federal authorities are more likely to use the "harboring" provision of the statute to pursue a civilian who is actively hiding an individual they know is a military deserter, especially if the deserter poses a risk.
Online vs. in-person: The legal line for enticement is not always clear in the age of online communication. Public online encouragement for soldiers to desert is likely protected political speech, but direct, targeted, or in-person incitement and aid to specific service members is not. In general, federal prosecutions related to speech inciting desertion are rare today.
Military justice: The Uniform Code of Military Justice (UCMJ) is the primary method for dealing with desertion and related offenses. Military law offers a more direct and efficient route to prosecute service members themselves and, in some cases, those who have aided them. Civilian enforcement of 18 U.S.C. § 1381 is often used as a tool when the perpetrator is a civilian who falls outside the UCMJ's jurisdiction.
Related Supreme Court cases
While no prominent Supreme Court cases center specifically on 18 U.S.C. § 1381, several have addressed related issues.
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