Section 249: Rape, attempt upon chastity and illegal sexual intercourse

249. Rape, attempt upon chastity and illegal sexual intercourse (1) Any person who is guilty of the crime of rape shall be liable to penal servitude for a term which shall not be less than 10 years. (1A) Notwithstanding any other enactment, where a person is convicted of an offence under subsection (1), the Intermediate Court shall have— (a) jurisdiction to inflict penal servitude for a term not exceeding 40 years; (b) power to order sentences of penal servitude to be served consecutively, provided that the terms of such sentences shall not in the aggregate exceed 40 years. (1B) Notwithstanding any other enactment, prosecution for the offence of rape may, at the sole discretion of the Director of Public Prosecutions, take place before a Judge without a jury where it is averred that the offence of rape was committed by 2 or more individuals. (1C) Sections 151 and 197 of the Criminal Procedure Act, and the Probation of Offenders Act, shall not apply to a conviction for the offence of rape. (2) Any person who commits an indecent act (attentat à la pudeur) by force or without consent upon a person of either sex, shall be liable to penal servitude for a term not exceeding 10 years. (3) Any person who commits an indecent act (attentat à la pudeur), even without violence and with consent, upon a child of either sex under the age of 12 shall be liable to penal servitude for a term not exceeding 10 years. (4) Any person who has sexual intercourse with a minor under the age of 16 or a mentally handicapped person, even with his consent, shall, be liable to penal servitude for a term not exceeding 20 years. (5) (a) Any person who has sexual intercourse with a specified person, even with consent, shall commit an offence and shall, on conviction, be liable to penal servitude. (b) Any person who commits an indecent act (attentat à la pudeur), even without violence and with consent, upon a specified person shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 16 years. C57 – 65 [Issue 2] Criminal Code (c) In this subsection, “specified person”— (i) means any person who, in relation to the person charged, comes within the prohibited degrees set out in articles 151, 152 and 153 of the Code Civil Mauricien; (ii) includes— (A) a stepchild or an adopted child, of whatever age, of the person charged; (B) a child of whatever age whose custody or guardianship has been entrusted to the person charged by virtue of any other enactment or of an order of a Court; (C) a child of whatever age or a mentally handicapped person, other than the spouse of, but living under the same roof as, the person charged or who is the child of the partner of the person charged. (6) No prosecution shall be instituted under this section except on an information filed with the consent of the Director of Public Prosecutions. (7) It shall be a sufficient defence to any prosecution under subsection (3) or (4) that the person charged had reasonable cause to believe that the child was above the age of 12 or 16, as the case may be. [S. 249 amended by Act 20 of 1990; Act 26 of 1991; Act 13 of 1998; s. 3 of Act 30 of 2003; s. 8 (b) of Act 36 of 2008 w.e.f. 6 December 2008.]