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  5. 64 N.Y.2d 152 (1984)
 

PEOPLE v. LIBERTA

64 N.Y.2d 152 (1984)

The People of the State of New York, Respondent, v. Mario Liberta, Appellant.

Court of Appeals of the State of New York.

Decided December 20, 1984.

Attorney(s) appearing for the Case

Barbara Howe, Rose H. Sconiers and James A. W. McLeod for appellant.

Richard J. Arcara, Erie County District Attorney (John J. DeFranks and Jo W. Faber of counsel), for respondent.

Sarah Wunsch, Anne E. Simon, Laurie Woods, Joanne Schulman and Rhonda Copelon for Center for Constitutional Rights and others, amici curiae.

Elizabeth Holtzman, Kings County District Attorney (Barbara D. Underwood and Evan Wolfson of counsel), for Elizabeth Holtzman, amicus curiae.

Chief Judge COOKE and Judges JASEN, JONES, MEYER and KAYE concur; Judge SIMONS taking no part.

WACHTLER, J.

The defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in the presence of their 2½ year old son. Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. The defendant, however, though married at the time of the incident, is treated as an unmarried man under the Penal Law because...

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