Max Perkins and Robert McCorkle were arrested in Charlotte, North Carolina, on the charge that they “did unlawfully, willfully, maliciously and feloniously commit the abominable and detestable crime against nature with each other.” The statue North Carolina statute that they were arrested under was a 429-year-old law carried over from England which was only slightly changed in 1869 to remove the death penalty.
Max McCorkle pleaded no contest and received the minimum sentence under the archaic law of 5 to 7 years.
Perkins, however pleaded innocent. The jury found Perkins guilty, and the same judge who sentenced McCorkle earlier to 5 to 7 years sentenced Perkins to 20 to 30 years in prison.
Perkins appealed and the case went to Federal Court, and on October 5, 1964, Federal Judge J. Braxton Craven ruled that Perkins was wrongly convicted. Craven found that if the statute outlawing the “detestable crime” was a new one, it would be unconstitutionally vague. But it wasn’t.
Craven found that the specific crime being outlawed was “buggery”; Perkins’s “detestable crime” was fellatio. He also found that Perkins’s excessive punishment, when compared to McCorkle’s, was obviously imposed because “his not guilty plea inconvenienced the court and that he was punished for it.”
Judge Craven ordered Perkins released before concluding his opinion:
Is it not time to redraft a criminal statute first enacted in 1533? And if so, cannot the criminal law draftsmen be helped by those best informed on the subject — medical doctors — in attempting to classify offenders? Is there any public purpose served by a possible sixty year maximum or even five year minimum imprisonment of the occasional or one-time homosexual without treatment, and if so, what is it? Are homosexuals twice as dangerous to society as second-degree murderers — as indicated by the maximum punishment for each offense? Is there a good reason why a person convicted of a single homosexual act with another adult may be imprisoned six times as long as an abortionist, thirty times as long as one who takes indecent liberties with children, thirty times as long as the drunk driver — even though serious personal injury and property damage results — twice as long as an armed bank robber, three times as long as a train robber, ten times as along as one who feloniously breaks and enters a store, and 730 times as long as the public drunk?
These questions, and others like them, need to be answered.
In the end Robert Perkins received a new trial and was found not guilty.