In 1961, she was indicted by a state grand jury. She was considered to be a public nuisance, and had previously been convicted of prostitution. She was charged under an 1837 North Carolina law, copied from the Tudor law of 1533, that 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".In 1869, the penalty had been reduced to a maximum of 60 years.
Miss Perkins, as the Time journalist put it, “wore women's clothes even at his trial”, pleaded not guilty, was tried and sentenced to not less than 20 or more than 30 years in prison. Her co-defendant similarly charged at the same time pleaded nolo contendere, got a five-year sentence from the same judge and was paroled after 17 months.
After three years in a male prison, Max managed to obtain a hearing before a US District Judge by petitioning for a writ of habeas corpus. The judge suggested that the sentence constituted "cruel and unusual punishment". Restricted by precedents, all he could do was order a new trial on the grounds that the court-appointed lawyer had had only a few hours to prepare a defense.
For the new trial, Perkins was persuaded to impersonate a man, and to admit to homosexuality. "By choice?" pressed the prosecutor. "God in heaven knows, no," said Perkins. Said her lawyer to the jury: "There but for the grace of God go you and I. It could happen to any of us." This time the jury found her not guilty.
- "The Law: Out of the Briar Patch". Time, Dec 25, 1964. www.time.com/time/magazine/article/0,9171,830980,00.html.
- John R. Cavanagh. Counseling the Invert. Bruce Pub Co, 1966: 194.
- Martin Duberman. “A Friend at Court”. About Time: Exploring the Gay Past. A Meridian Book, 1986,1991: 246-250.
The Time journalist fails to get Max’s surname right and calls her Doyle throughout.
Why did Max get a much longer sentence than her co-defendant? a) she pleaded not guilty; b) she was considered to be a public nuisance, the court was apparently trying to get rid of Perkins by locking her up for the rest of her life; c) unlike the co-defendant, she was not gender normative. Duberman, the first historian of Stonewall, fails to mention that Max was trans, he merely alludes to the fact in a footnote added afterwards.