Ad accuses Catherine Cortez Masto of not addressing rape kit backlog as Attorney General

A new Nevada ad campaign claims Democratic Senate candidate Catherine Cortez Masto "failed Nevada rape victims" during her tenure as the state’s attorney general.

Senate Leadership Fund, a Republican super PAC with ties to Senate Majority Leader Mitch McConnell, has launched several ads attacking the former attorney general on the issue of untested rape test kits.

"Catherine Cortez Masto failed Nevada rape victims," the ad says. "While Attorney General, thousands of rape kits were never sent for DNA analysis."

Cortez Masto’s campaign has taken the ads seriously, as she’s staked much of her candidacy on her record of combating human trafficking and violence against women (even releasing two ads attempting to push back on the claims).

However, it’s hard to find any evidence that she took on the specific problem of the state’s rape kit backlog while in office from 2006 to 2014.

How the backlog happened

"Rape kits" are shorthand for sexual assault forensic evidence kits, intended to be collected soon after a sexual assault or rape by a nurse or doctor. It collects a variety of evidence including the patient’s medical history, tissue and hair samples from the victim’s body and clothes, photos of injuries sustained by the victim, and biological samples such as saliva, blood, semen, urine, skin cells and hair.

Nevada came under fire in October 2014 when a nonprofit group released a report showing Las Vegas tested only 16 percent of kits collected by police between 2004 and 2013, with more than 4,300 left unprocessed. Nationwide, the backlog of untested kits was estimated to be more than 400,000 in 2014.

Kits aren’t tested for several reasons, including if police decline to request a test in favor of other evidence or if the victim decides not to proceed with prosecution. Testing kits can also be expensive (up to $1,500 for an individual kit), which contributes to backlogs.

Advocates say that testing every kit is important because DNA samples from the kits are entered into an FBI database which can uncover new leads and introduce evidence linking sexual assault or rape cases together.

Who to blame?

The Senate Leadership Fund ads use several pieces of evidence to claim that Cortez Masto "neglected" the issue for eight years, including video of an October 2014 exchange between her and a member of a criminal justice committee on the backlog issue.

The video highlights a question from Richard Siegel, former president of the Nevada American Civil Liberties Union, asking Cortez Masto if she’s aware of recent articles about the unprocessed rape kit backlog issue.

Cortez Masto responds that she hasn’t (clip begins at 2:17:40), which the ad highlights as evidence that she had "no idea" of the issue.

A review of the video shows the ad plays the exchange relatively straightforward, but Siegel (who is supporting Cortez Masto) says it’s taken out of context and ignores all the other work she did on the issue.

"The truth was the opposite of that," he said. "She was the leader without any question with anything to do about sexual violence."

Still, there isn’t much evidence that Cortez Masto specifically tackled the backlog issue while in office, though she did support legislation expanding access to rape test kits and more broadly sought support for victims of human trafficking and sexual violence.

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The most direct evidence provided by the Cortez Masto campaign is a 2012 letter that she and 52 other state attorneys general signed urging Congress to reauthorize the Violence Against Women Act. The letter references a "rape kit that goes unprocessed for lack of funding" as an example of the consequences for not reauthorizing the bill.

Cortez Masto also worked on legislation expanding access to sexual assault kits, secured grants to combat violence against women, and helped draft legislation preventing rape or domestic violence victims from being compensated due to their "conduct," which critics say is a form of victim-blaming.

As for the ad’s central claim, there is little direct evidence that she took direct action on dealing with the backlog.

Her successor, Republican Attorney General Adam Laxalt, made filling the backlog a campaign pledge and was able to secure roughly $3.7 million in grants and redirected settlement funds to pay for funding the backlog about a year after taking office.

Though the funding is secured, filling the backlog is still a work in progress. Out of about 8,000 total untested kits, the Attorney General’s office says about 1,500 have been sent out for testing as of August 2016, with expectations that roughly half of backlogged kits will be sent out for testing by the end of next year.

Adding to the complexity is that responsibility over untested rape kits is a jurisdictional web, as Nevada is an outlier among most states in not having a dedicated state-level forensic lab. The state is instead served by two separate police-run facilities in Reno and Las Vegas servicing the rest of the state.

"The attorney general has no responsibility over the laboratory or over the police agencies that the laboratory serves," said Renee Romero, former director of the Reno-area forensic lab.

So there is no statutory requirement that Nevada’s attorney general must oversee rape test kits and any potential backlogs, but as the state’s top law enforcement officer, they clearly have the discretion and freedom to take on issues that aren’t clearly laid out in state law.

The ads also claim that Cortez Masto was unable to find money needed to address the backlog, while her successor "quickly" found funds to fill the backlog.

Laxalt did gain approval from legislators in December 2015 allocating $3.7 million targeting the backlog, but those funds came from various sources, including a one time payment of $1.7 million in settlement funds from JP Morgan Chase case over fraudulent debt collection practices.

The initial action against the bank was taken by a group of 13 state attorneys general (not including Nevada) that negotiated the national settlement. Nevada received $1.7 million from that deal, which Laxalt asked to have specifically dedicated to filling the rape-kit backlog.

Cortez Masto’s office did send out an advisory in 2014 encouraging Nevadans to file complaints about fraudulent debt collection practices with the Consumer Financial Protection Bureau, though it’s difficult to draw a line between that press release and the ultimate settlement agreement, which Nevada played no part in negotiating and coming in July 2015, after she left office.

"It is unclear what former Attorney General Masto is referencing when she states that her work 'helped fund testing of Nevada’s rape kit' backlog," Attorney General’s office spokeswoman Monica Moazez said in a statement.

Laxalt’s office also applied for and received around $1.9 million in federal grant money to address the backlog, which wasn’t available when Cortez Masto was in office. But it’s not a new issue, as Congress has appropriated hundreds of millions of dollars targeting rape-kit backlogs since 2004 (though it’s been criticized for not effectively tackling the problem).

One reason Cortez Masto may not have tackled the backlog issue specifically is because the extent of problem wasn’t revealed until the final months of her term. The first reporting as to the actual extent of the backlog appeared in October 2014, just two months before Cortez Masto left office.

Our ruling

Senate Leadership Fund claims, "Catherine Cortez Masto failed Nevada rape victims," and "while attorney general, thousands of rape kits were never sent for DNA analysis."

The ad is misleading in the sense that it portrays Cortez Masto as insensitive to the plight of victims of rape, but the charge that nothing was done to reduce the backlog during her time as attorney general is accurate. However, the labs where rape kits are tested are run by police, and not directly by the attorney general.

We rate this ad Half True.