Mauricio Archibald (194? - ) arrested

We have previously discussed Felicity Chandelle who was arrested in March 1964 while walking close to her home and charged and convicted under her male name of John Miller of a violation of Section 887, Subdivision 7 of the New York Code of Criminal Procedure which designates as a vagrant any person who 'having his face painted, discolored, covered, or concealed, or being otherwise disguised in a manner calculated to prevent his being identified, appears on a road, lot, wood, or enclosure'. The law dates back to the 1840s when farmers were disguising as 'Indians' to harass Dutch landowners in the Anti-Rent Movement.

Virginia Prince and Siobhan Fredericks championed her case and raised over $1,200 to finance an appeal. The American Civil Liberties Union filed a brief as amicus curiae, and the New York Times carried a sympathetic story. The appeal hearing was denied, by the New York appeal court and by the US Supreme Court.

In April 1967, Mauricio Archibald, en femme, having been to a masquerade party, was on a New York subway platform waiting for a train. He winked at a passing police officer who then approached and asked if he were a boy or a girl, Archibald replied: "I am a girl". The officer charged him as being a vagrant in violation of subdivision 7 of section 887.  He was tried and convicted.

Archibald appealed to the New York Supreme Court in October 1968. He contended that a) he could not be a vagrant in that he had visible means of support b) while cross-dressed, he had no intention of committing any illegal act.

Judge Markowitz observed that the 1845 law had been updated and readopted, with a more modern aim to discourage “overt homosexuality in public places which is offensive to public morality” as well as disguises used to cover criminal activities.” But Archibald was not engaged in criminal activities, nor was he gay. Mere “masquerading” without harming third parties is not a crime in New York, suggested Judge Markowitz. “If appellant’s conviction was correct then circus clowns, strangely attired ‘hippies,’ flowing-haired ‘yippies’ and every person who would indulge in the Halloween tradition of ‘Trick or Treat’ ipso facto may be targets for criminal sanctions as vagrants.”

However Judges Streit and Hofstadter ruled that the wording of subdivision 7 does not require that the State must establish either a lack of means of support or an intention to commit an illegal act. Thus Per Curiam the conviction was affirmed.

Ironically Section 105 of chapter 681 of the Laws of 1967, which repealed section 887, came into effect as of September 1, 1967, "provided that the newly enacted sections were not to apply or govern the prosecution for any offense committed prior to the effective date of the act".

Neither Virginia Prince nor Siobhan Fredericks saw fit to champion this case

• "The People of the State of New York, respondent, v. Mauricio Archibald, Appellant". New York Supreme Court, October 18, 1968. http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19681018_0043172.NY.htm/qx.
  
• Nan Hunter. "Sexuality, Gender and Law Seminar". Georgetown Law, Spring 2011: 52-3. https://articleworks.cadmus.com/gtcp?product=1787293&ownernbr=1849090.

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I have not found any discussion of the John Miller conviction that mentions Mauricio Archibald, nor the reverse.  However it is definitely the same law code that both were convicted under.

The new laws of 1967, while stopping the use of one inappropriate law code, did not decriminalize cross dressing in New York.  In particular, a bar or club could be closed and patrons arrested, simply because a single person, deemed to be crossdressed, was present.  See Lee Brewster.