Testifying to the “Positive Fact” of “Rape”: Corroboration Requirements in Nebraska and Kansas through the Late 20th Century

Between 1877 and 1895 the Nebraska State Legislature and Supreme Court defined forcible rape, carved out the parameters of statutory rape, and establish the evidentiary standard for necessitating corroboration of a prosecutrix’s claims of violation. To this last point, it seemed the court advanced on the matter so quickly as to bring confusion by 1887, as expressed in Fager v. State. The Court questioned whether a witness needed to testify to the “positive fact of the rape” or whether the courts only needed supporting testimony as evidence to render a guilty verdict. They held fast to the latter, requiring corroboration until 1989 when the legislature recodified its rape statute overturning the judicially established rule.

Between 1871 and 1887, the Kansas Legislature and Supreme Court also defined forcible rape and modified age-of-consent laws in 1887 from 10 to 18 (for females) with one legislative act. Evidentiary standards for corroboration, however, were less stringent than Nebraska. Kansas did not require corroboration of a prosecutrix’s testimony by law or by judiciary standard, though it did address the competency of claimants as early as 1871 in State v. Otey, sustaining the credibility of a child and her primitive understanding of oath-taking. Into the late-twentieth century, the courts continued to hold valid the testimony of a prosecutrix IF there remained clear and convincing evidence from a credible claimant to sustain a conviction for rape.

As these states exemplify, the path to clarity on corroboration of rape charges has been riddled with inconsistency at the state level in the last two centuries. This disjunction amplified, both then and now, the challenge of litigating sexual assault in a judicious manner and limited legal options for women forced to reckon with such violence in the Great Plains West, a historical and geospatial region especially susceptible to hyper-masculine inclinations.