The Law: Out of the Briar Patch

Indicted by a North Carolina grand jury for committing a homosexual act, Defendant Robert McCorkle pleaded no contest, got a five-year sentence and served only 17 months before being paroled. Max Doyle pleaded not guilty, was tried and sentenced to not less than 20 or more than 30 years in prison.

The oddly disparate sentences were handed down by the same judge, acting under an equally odd state law based on an English statute of 1533 that made homosexuality a capital offense. As adopted in 1837, the euphemistic North Carolina law reads: “Any person who shall commit the abominable and detestable crime against nature, not to be mentioned among Christians, with either mankind or beast, shall be adjudged guilty of a felony, and shall suffer death without the benefit of clergy.” As it stands today, the law omits death and Christians, but prescribes a whopping sentence of up to 60 years.

Disposal Law. Not until Doyle’s case had the North Carolina law imposed on adult males a sentence longer than five years. But Doyle, the town transvestite, was something of a public nuisance. Previously convicted for prostitution, he wore women’s clothes even at his trial. The court simply disposed of the defendant by sending him to prison for what would have amounted to the rest of his life.

Doyle’s sentence was twice as long as the one North Carolina gives an armed bank robber, three times longer than a train robber’s, 30 times longer than a drunken driver’s. His alleged crime—a single homosexual act between consenting adults—is a misdemeanor in New York; in 24 other states, homosexual offenses are punished only when openly committed, as Doyle’s was not. The prestigious American Law Institute aims to exempt private “deviate sexual behavior” between consenting adults, punishing only those involving force or corruption of children.

Second Chance. Amid these winds of change, Doyle eventually got his case before North Carolina’s liberal U.S. District Judge James B. Craven by petitioning for a writ of habeas corpus. Stunned at the record, Craven suggested there was a violation of the Eighth Amendment’s guarantee against cruel and unusual punishment. Restricted by precedents, however, he simply ordered a new trial on the ground that Doyle had been unlawfully imprisoned because his court-appointed lawyer had had only a few hours to prepare a defense. In a scathing order, Craven told North Carolina that imprisoning rather than treating Doyle “is a little like throwing Br’er Rabbit in the briar patch.” And he asked: “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?”

Whatever the legislature’s answer will be, Doyle last week stood trial again—in subdued men’s clothes—and on the stand readily admitted that he is a homosexual. “By choice?” pressed the prosecutor. “God in heaven knows, no,” said Doyle. Said his lawyer to the jury: “There but for the grace of God go you and I. It could happen to any of us.” The jury acquitted Doyle and set him free after three years in jail.