Fact Check: Did NC AG candidate Jim O’Neill leave rape kits untested?
The issue: N.C. Attorney General Josh Stein claims in a televised campaign ad that his opponent, Forsyth County District Attorney Jim O’Neill, “left 1,500 rape kits on a shelf leaving rapists on the streets.”
Why we’re checking this: O’Neill’s campaign filed a complaint against Stein with the N.C. Board of Elections. In the complaint, the campaign accuses Stein of violating election laws by intentionally putting out misleading information.
What you need to know: The N.C. Conference of District Attorneys didn’t hesitate to debunk the commercial. Amber Lueken Barwick, the conference’s violence against women resource prosecutor, said Thursday that the kits weren’t in O’Neill’s custody.
Law enforcement investigators use sexual assault examination kits to collect evidence from victims, including urine, blood samples and swabs from the body surface. With the victim’s permission, they can take their clothing and other items to look for evidence of DNA from the attacker.
Lueken Barwick said the rape kits are held by the law enforcement agency that obtained them from the hospital or clinic. “That isn’t necessarily the DA allowing this to happen,” she said.
Lueken Barwick served with Stein on two working groups that developed a tracking system for the rape kits and legislation to deal with the inventory. One of those groups continues to meet.
O’Neill is president-elect of the executive committee of the Conference of District Attorneys.
Lueken Barwick added that the number in the commercial came from several years ago when the state mandated a count of untested rape kits in each county. She said those kits included cases that didn’t mandate a test, ones deemed unnecessary to test, and cases from prior district attorneys.
“I hate that this has become a political issue,” Lueken Barwick said. “This is an extremely important issue.”
The commercial
Stein’s campaign ad introduces viewers to a woman identified as “Juliette — Survivor of Sexual Assault” who sits in front of a camera and says, “When you survive sexual assault you want to be heard and you want justice.”
The woman says that Stein led the effort to get more rape kits tested, put more rapists behind bars and worked to get thousands of untested rape kits processed.
“As a survivor of sexual assault that means a lot to me,” the woman said, “and when I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out.
“Jim O’Neill can not be our attorney general.”
Josh Stein’s record
Stein, who became North Carolina’s attorney general in 2017, made a push to process untested rape kits.
In 2019, he released a report that said North Carolina had more than 15,000 untested rape kits throughout the state, The News & Observer previously reported.
The newspaper also reported that of the 15,000 untested kits, 6,000 had either been resolved in court or showed no evidence of an actual assault.
That same year, the N.C. General Assembly passed the Standing up for Rape Victims (SURVIVOR) Act of 2019 which created funding and a plan to deal with past, present and future rape kits that needed to be tested.
Jim O’Neill’s record
O’Neill became Forsyth County’s district attorney in 2009 and is running as Stein’s Republican opponent in this year’s general election.
On Sept. 29, in response to Stein’s ad, O’Neill’s campaign wrote a letter to the N.C. State Board of Elections stating that he never left untested rape kits sitting on a shelf.
“This assertion makes the ad false, as it is a direct lie, is insulting and worst of all defamatory to Mr. O’Neill,” the complaint says.
Stein said as much in an interview with The News & Observer on Sept. 17, telling the newspaper that it wasn’t O’Neill’s job to fix the backlog but that it wasn’t his job either.
“What we want as attorney general is someone who identifies and solves hard problems,” Stein said then.
O’Neill’s complaint also says that rape kits are never given to the district attorney and are kept in law enforcement custody and tested by the State Crime Lab or a lab authorized by the State Crime Lab. The State Crime Lab is run by the Department of Justice which is overseen by Stein.
A State Board of Elections official confirmed Thursday that it received O’Neill’s complaint. The board’s policy requires an examination of the complaint that could lead to an investigation and referral for prosecution.
The policy does not say how long that could take. Officials said it depends on the case.
Chain of custody
The Survivor’s Act, drafted by Stein, explains the chain of custody in detail and reiterates what Luekin Barwick said.
The law requires that the collecting agency notify law enforcement within 24 hours. A law enforcement agency takes control of the kit within seven days of notification. It is then its job to retain and preserve the evidence.
Within 45 days of that, the law enforcement agency must submit the kit for testing to either the State Crime Lab or another lab approved by the state.
The law also lays out what happens to untested rape kits collected before Jan. 1, 2018, and how law enforcement tackles getting those kits tested.
The law requires review teams to determine a priority for getting sexual assault kits tested. Those teams can be made up of prosecutors, law enforcement, sexual assault nurse examiners, victim advocates and forensic lab representatives.
Process in Durham
Durham County District Attorney Satana Deberry explained in a written statement to The News & Observer what that process looks like in her county.
Deberry said she is not part of the chain of custody. “The DA is not part of the chain of custody,” she said, “but our office would look at whether the chain of custody was preserved in evaluating a case.”
Her office is part of the review of older rape kits with a team that includes the sexual assault kit initiative prosecutor and the special victims unit lead prosecutor, along with law enforcement, sexual assault nurse examiners and victim advocates.
“Our office works with police, medical experts and victim advocates to review these cases and may consult in the decision to test a kit if it hasn’t been submitted,” Deberry said. “The Durham Police Department has made a commitment to submitting as many of those kits as possible for testing, and has made tremendous progress in doing so.”
The review process also taught the office why there was a backlog.
“Through this review process, it has become clear there were many reasons kits were previously not submitted for testing, including but not limited to previous lab policies regarding what kits should and should not be submitted,” Deberry said.
“We owe it to survivors to also acknowledge that part of how this backlog developed was through the discretion of criminal justice system actors and how they applied their discretion to these cases in the past.”
Sources:
Standing up for Rape Victims (SURVIVORS) Act
Amber Lueken Barwick, the violence against women resource prosecutor for the NC Conference of District Attorneys
Jim O’Neill, Forsyth County District Attorney
Eric Stern, campaign manager for Josh Stein
NC Department of Justice news release
NC Department of Justice news release
The NC Board of Elections policy
Satana Deberry, district attorney for Durham County
This story was produced by The News & Observer Fact-Checking Project, which shares fact-checks with newsrooms statewide. It was edited by N&O editors Richard Stradling and Jane Elizabeth. Submit a suggestion for what we should check, or a comment or suggestion about our fact-checking, at bit.ly/nandofactcheck.
This story was originally published October 2, 2020 at 10:19 AM with the headline "Fact Check: Did NC AG candidate Jim O’Neill leave rape kits untested?."