Introduction

Major Rick Hanrahan:

In this two-part interview, we discuss the birth of the Special Victims' Counsel program with retired Lieutenant General Richard Harding, The Judge Advocate General of the United States Air Force from 2010 to 2014, who was instrumental in creating the SVC program that affords sex assault victims independent legal counsel. We take a behind-the-scenes look at what occurred at the Pentagon with top elected officials that led to the programs birth. General Harding discusses the initial opposition to the program, its biggest challenges, and how to effectuate positive change.

Here are a few clips from part one of today’s interview.

[Upbeat Intro Music].

Show Excerpt, Lieutenant General Richard Harding:

In the hallways I was stopped a few times and asked by very senior, you know, political appointees, you know, what the heck I was doing and did I understand it was illegal? I said, "It’s not illegal, it’s fine. It’s going to work fine."

And I charged them to understand that there’s a lot of pressure on what they’re about to do. They needed to know that the eyes of the nation were on them.

Announcer:

Welcome to The Air Force Judge Advocate General’s Reporter Podcast, where we interview leaders, innovators, and influencers on the law, leadership, and best practices of the day. And now to your host from The Air Force Judge Advocate General’s School.

Maj Hanrahan:

Welcome to another episode from The Air Force Judge Advocate General’s School at Maxwell Air Force Base. I’m your host, Major Rick Hanrahan. Remember, if you like the show, please consider subscribing on Apple podcast, Spotify, or your favorite podcast platform and leaving a review. This helps us to grow in outreach to the JAG Corps and beyond.

Well we have a prominent guest and fascinating topic for today’s interview. We have the unique privilege to interview retired Lieutenant General Richard Harding, The Former Judge Advocate General of the United States Air Force from 2010 to 2014, with a military career spanning 34 years. And he’s here today to speak with us on the birth of the Special Victims' Counsel program.

Sir, thank you for taking some time to speak with us today.

Lt Gen Harding:

You bet. It’s an honor and a privilege, I’m glad to be here.

Maj Hanrahan:

Lieutenant General Harding, the son of an Air Force officer and grandson of a Naval officer, entered the Air Force with a direct commission in 1980. From there, he served in a variety of assignments as a judge advocate, to include serving six assignments as a Staff Judge Advocate at the Unified Command, Major Command, Numbered Air Force, and Wing levels, to Commander of Air Force Legal Operations Agency at Bolling Air Force Base in Washington D.C.

Then in February 2010, General Harding was appointed as The Judge Advocate General of the United States Air Force, or TJAG, where he served for the next four years until 2014, as the highest ranking uniformed attorney in the Air Force and the principal legal advisor to the Secretary of Air Force, the Air Force Chief of Staff, and all officers subordinate to them, where he led over 4,400 uniformed and civilian lawyers, paralegals, and legal support personnel.

During his tenure as TJAG, he helped implement numerous initiatives, including the service award winning Special Victims' Counsel program, which we’ll talk about today that provides victims of sexual assault with independent legal counsel. General Harding also led a development for writing the Air Force directive, the Air Force instruction on standards of conduct, improved the legal assistance training program, created and implemented the certification program for Air Force prosecutors and defense counsel to represent their clients without the assistance of a senior trial counsel, and created the training and readiness office for the Air Force JAG Corps, among numerous other initiatives. Currently, General Harding is retired and lives with his wife, Linda, in Columbia, Missouri.

So sir, before we jump in to today’s topic, just curious how retired life is going for you these days, and how you’re spending your time?

Lt Gen Harding:

It’s going pretty well. I’ve got [laughing]—I never knew that when you raised your hand and volunteered after you’ve left the service, how busy you can get. So, I’m a trustee on the board of trustees for Columbia College. I speak for the professional education group, which does CLE across the nation. I’ve served as the president of Welcome Home, which is a veteran’s homelessness center. We run a, you know, a shelter and provide other services as well, mental health services and try to get people back up on their feet. Most recently served as the president of our church’s counsel. So, I, you know, I’ve been a little busy. As a matter of fact—and Linda has done the same. She’s on the assistance league and works like crazy down there and that’s a good thing. So, we’re very busy. We live out on a wooded couple of acres, forested kind of lot, outside Columbia and life is very good. So, I’m glad we moved here. I had never really been associated with Columbia before, but I knew my grandkids were in Jefferson City, which is 20 minutes away, so that would be a good thing. So we got here and we found the perfect place and we are very happy. Thanks for asking.

Voice and Choice

Maj Hanrahan:

Yes sir, well that’s great to hear and that there is light at the end of the tunnel after retirement. So—so, we’re here to talk today on today’s topic which is the birth of the Special Victims' Counsel program, and really I can’t think of anybody that would have a better perspective than you, sir. I know that we talked about this briefly in preparing for today’s interview, and you know, today many judge advocates and legal professionals, even worldwide, are very aware of this program and many joined the service to get involved with the program. So, it’s come a very long way from its birth. Today, I think what we would like to do is kind of maybe pull back the curtain a little bit and let us hear from you on your perspective on how this program came to be.

Lt Gen Harding:

2012 was one monumentally important for victims’ rights in the Air Force. You know we had the results of the every other year survey that incredibly said we had 26,000 sexual assaults in the Department of Defense the year before. It also said that 87 percent of those were unreported. And therefore, only 13 percent were reported. At that time we had the restricted and unrestricted dichotomy. About half of the 13 percent were restricted. So that was really the challenge. How do you fix something when you can’t find it? And you don’t know exactly where it is? There were lots of different reasons for not reporting those, and that was, we learned a lot about that. The same reasons that you see in campus sexual assault today for not reporting sexual assaults. So how do you fix a problem when 87 percent is hidden from you?

Next we had some help from some interest groups, Protect Our Defenders, Service Women’s Action Network, both represented people who had been—veterans who had been sexually assaulted when on active duty and clearly they were not happy. We heard story after story that kind of ended with I was assaulted twice. First, by the offender and then by the system. So how do you fix that? Well, what you try to do is you try to give people voice and choice. And in the victims' representation community, you’re going to hear that phrase often, voice and choice, and that means you know, give them some tool where their voice can be heard. You know, without representation, they are kind of along for the ride. And sometimes it feels like they’ve been treated like a child, you know, to be seen but rarely heard. And the system, our system, any system, any criminal system, is going to be mysterious to them. That was one of the impetuses.

Finally, in 2012, the Chief of Staff Mark Welsh, General Mark Welsh, asked three of us to come and visit him in his private conference room. And there was the Chief of Personnel and Major General Margaret Woodward, Maggie Woodward, who was leading our sexual assault side. General Welsh said, "We’ve done a ton of training, we’ve trained like crazy. It doesn’t seem to be making us much difference as it should." 

Part of the problem there is that we bring on 30,000 new Airmen every year and they need to be trained, and they come from different backgrounds, you know, high schools and families, and sometimes they don’t actually understand what respect is all about. And I think this is nothing more than a big game. And so you got to reach out to those people. So training can only push us so for. 

We said we need to do something else. The same time, Congress had formed what they called—House of Representatives, the Sexual Assault—Military Sexual Assault Caucus. It had one Republican and one Democrat. The Democrat was Niki Tsongas. The Republican was Mike Turner. And they very much wanted to know what was going on and they were holding hearings. So we had to respond to them. In the Senate, through largely the leadership of Senator Gillibrand, was trying to pull commanders out of these decision matrix for military justice processes. So they wanted the military to look more like, you know, like the Department of Justice or a DA or a prosecuting attorney’s office, where attorneys ran the whole thing and commanders didn’t get a vote. Frankly, commanders weren’t the problem here. They had really nothing to do with this, but that was the impetus and it got to the point where, you know, if you know anything about Senate processes, cloture which ends a filibuster, you have to have 60 votes. They were at 55, so it looked like the UCMJ was going to go out the window and be done.

At that meeting with General Welsh, and he recessed it, and he said “Okay, go back and think.” 

And I had thought about this for some time and I mentioned to him as he was leaving about an idea of giving attorneys, free of charge, to victims and their only client would be the victim or the survivor if you will, in the victim community, they prefer to be referred to as survivors. He thought it was a pretty good idea. He got very excited. And I said, "What it would do is give them confidence and at least make them less angry at the system and, you know, if they don’t want to go to court, they can tell their SVC they don’t want to go to court. If they want to go to court they can tell them that. You know, but they’ve got a voice now that understands the legal process."

That’s important because victims have the ability to speak at three times, by my reckoning under our rules, MRE—the Military Rules of Evidence. One is, you know, certainly rape shield. Rape shields kind of tricky because it has three exceptions to the general prohibition that you’re not going to talk about the sex life of a victim. The last one of which says that when it’s constitutionally compelled. Well how would a victim know what’s constitutionally compelled? And how are they supposed to represent themselves in front of the judge? And you know an attorney I thought would really help there. The other victim—victim advocate privilege. And the last one, the psychotherapist privilege. But all three allow the victim to speak to the court and I thought well, wouldn’t it be a great idea if the victim could speak through a knowledgeable counsel? And maybe and take some of the burden and the anxiety off the shoulders of the victim and isn’t that all about voice and choice? And couldn’t we built confidence in our victim community which is apparently large at that time. That the system wasn’t opposed to them.

So, the Chief of Staff, General Welsh, said, "I want you to go right now and go see the Secretary of the Air Force", Mike Donnelly. 

So I went to see Secretary Donnelly’s office and I said I told his secretary—"The Chief has asked me to come down and talk to the Secretary."

And the Secretary called me and said "What’s going on?" And I told him the idea. And he said “That’s great. That’s what we’re going to do. You go do it.” 

I said, "Well sir, I need to kind of socialize the idea with the other services. I’m not sure how they are going to feel about it. And frankly, even inside the Air Force, I’m not sure how this is going to work."

Maj Hanrahan:

So sir, I would say at this time obviously, at this juncture in 2012, this was—would you at least kind of concur that this was a bit of a “radical idea” or at least it wasn’t the mainstream idea at the time?

Lt Gen Harding:

No, it wasn’t. The mainstream or the idea at that time was to just to tell Congress "No, we’re not changing the UCMJ", even though they were about to get 60 and change it for us. You know, they had the authority under the Constitution to pass a code, the UCMJ has been around a while, it’s well tested, it needed some reforms but pulling the commander out of the middle of it was not the one it needed. Because command is all about discipline and if you can’t present disciplined forces then you have a problem. General Washington said that “Discipline is the soul of the army. It makes small numbers formidable; procures success and esteem to all.” He was right in 1757 during the French and Indian War and is still the reason that we win today. So pulling the commander out of this and having the commander say well, there’s an attorney who doesn’t live here, and you’ve never met, that’s going to make a decision on whether or not this goes to court, kind of clips his wings in a large way and the commanders were never the problem.

Messaging Challenge 

Maj Hanrahan:

And sir, obviously there is an issue right, with sexual assault, and like you mentioned with victims and everything that they’re facing, and there needed to be some type of solution to this problem, right? That seemed to be pretty apparent going on in the Pentagon at that time. But what was the prevailing sentiment on how to approach this or resolve this issue? What was going on at that time? I mean it seems to me that the idea of having a Special Victims' Counsel was not what most people were advocating for or even thinking about.

Lt Gen Harding:

Well, I gotta tell you, inside the JAG Corps, it’s the one time I’ve seen the judges, the defense, the prosecution, and the investigators, OSI, agree on anything [laughing]. And they all agreed that they didn’t like this idea at all. So, we had to socialize it inside our own JAG Corps. And to be honest, we had very senior JAGs telling their commanders to be opposed to this idea. In the hallways I was stopped a few times and asked by very senior, you know, political appointees, you know, what the heck I was doing and did I understand it was illegal? I said, "It’s not illegal. It’s fine. It’s going to work fine." So, we really had a messaging challenge inside the JAG Corps. Outside the JAG Corps, it was equally tough.

We had four meetings on whether or not to, you know, enter intra—I’m sorry, interservice meetings, Marines, Army, Air Force, Navy, and Coast Guard JAGs, all in one room and the vote was always the same. Four were opposed and one was in favor. My vote was the one in favor. And it went like that and the final meeting we had, the Secretary of Defense sent down his—one of his special advisors and she came in and said, "I’m here because SECDEF asked me to be here and he wants to know why you are opposed to this idea." So clearly, SECDEF was sending out a signal, we need to get off the dime. 

And then finally, I got called in by the Secretary of the Air Force, Mike Donnelly again, and he said "Well, how’s it going?" 

And I said,  "I can’t get anybody to sign up to this, sir." 

And he said,  "Okay". And he picked up the phone and he called SECNAV, Secretary of the Navy, and he said "We’re doing this". 

Secretary of the Navy asked, "Would you please call it a pilot program so we are not stuck forever with it". Because they all knew that they were probably going to have to do it themselves.

Then we got called into—I got called into brief the Joint Chiefs and I gotta tell you, General Odierno got it. I mean, he really did. And he said, "The only problem I’ve got is whether or not we have enough resources to do this." And that he got that from his own JAGs.

So, I kind of said, "Well I’m not sure we can’t afford the resources to do this." So what I proposed in the Air Force, and I proposed it to the other services as well, I said,  "We repurpose people." So if we can find some legal offices that have—that could afford to lose at least one billet and pull that over into the SVC program, repurpose that person as a victims' counsel, and make it a regional kind of concept, that it would be fine. 

Honestly the Army had a harder problem than we do because they’ve got many many more people and sexual assaults, but they opted to do it. The Navy came around, finally. And they changed the name of the program because it has to be the Navy way, but it was basically the SVC program. And then the Coast Guard said that they were doing it, but they didn’t want anybody to know that they were doing it [laughter].

So anyway, the ball started rolling in the right direction at that point. And I was called back up to Congress to talk some more to them and my biggest concern at that point was our own legal assistance statute, 10 U.S.C. 1044e. And it talked about, you know, providing legal services to Airman and soldiers, sailors, Marines, on a, you know, on civil law issues. So what happens if you got a SVC that represents a victim in a criminal hearing? So I was a little concerned about that and it’s important to be concerned about that because you can’t spend money, i.e., in this case, salaries for attorneys unless you have an authorization. And of course an appropriation. We had the appropriation, we just didn’t have the authorization clearly stated that we could do this. 

So, I went up to Congressman Turner, who was very helpful on these things, and I said,  "You know, it would be nice if 10 U.S.C. 1044e said that we could do this." And so he started working on that. 

Other Congress people were less happy about that. And as a matter of fact, the Secretary of the Air Force and I were in a hearing at the House, where one of the Congresswomen said, "Secretary Donnelly would you please order your TJAG to do this?" 

I said,  "I’d be happy to do it, I just need, you know, to follow the Constitution and get an authorization."

And when the hearing ended, Secretary Donnelly said, "Let’s try to figure out what we can do on this." 

I said, "Here’s what we can do. We can ask the Department of Defense General Counsel, (Jay Johnson at the time), to please give us an opinion on whether or not this is within the scope of 1044e." 

And he said, "Okay, go do that."

So we went and I talked to Jay, to Secretary Johnson who later became Homeland Security Secretary, "Would you give me an opinion", and "Oh by the way, (I kind of telegraphed,) when they represent a victim in the court of law, isn’t it really kind of like a privacy issue, which is civil in nature? You know, can’t we say therefore this is authorized?" 

And Jay thought about it. About a week later, I got called into Secretary Donnelly’s office and Jay Johnson was in there and he hands me his signed opinion, which says it’s a privacy issue. Therefore you are within the scope of 1044e. And then Jay said, "What do you do you intend to do now?" 

And I said, "We intend to set this program up and get it going." 

Jay said, "Fine." 

And that was the end of the meeting. And of course he went back and he told SECDEF that, which is what SECDEF really wanted to hear certainly. And we started the program.

Now there were still lots of resistance and we just had to deal with it. Some of our own people were worried about, you know, this kind of looks like it’s two v. one. In other words two counsel against one. The prosecutor and the SVC against the defense counsel. And I said, well, that’s true if, I mean, you know, it’s sometimes the other way. It’s one v. two when the victim doesn’t want to go to trial and that the victim has, you know, a right to be represented, and the response was always well, the prosecution represents the victim. Well, no they don’t. They represent the people, in our case the United States. They don’t represent the victim and if you’ve ever than one of these cases, you know there comes a point in time where the interest of the prosecution and the victim kind of separate. Those are always awkward times, particularly if you’re talking about plea negotiations. And I knew we had some people that had forced victims to testify even though the victim didn’t want to go to a trial. And I thought that was just nuts, and it was a good way to upset a victim and probably lose your case anyway.

So we had large discussions about all of those things. At one point, one of the senior JAGs said, "Well, where is the victim’s counsel—the special victims' counsel, going to sit?" 

I said, "What you mean where are they going to sit? 

"Well, do they have a table up front?"

"Of course they don’t. They are not a party. If there is room in the gallery, fine, let them sit in the gallery. Like anybody else." 

But no, they are not a party. So there was lots of confusion. So we met as a JAG Corps, at MAJCOM level, several times to try to iron out what the, kind of the rules, the guidance would be on the Special Victims' Counsel program. Finally, I think we got down to some kind of consensus and that’s what we came out with as the initial rules. And we called it a pilot program because the Navy wanted us to call it a pilot program. I will tell you Secretary Donnelly told me it’s a pilot program forever [laughter].

So, he was convinced that this is going to work and I am glad he did. And then we no longer call it a pilot program and as you know, it was then embedded in law. Congress mandated it. You know, and Mike Turner had a like to do with it, Congressman Turner. And Senator McCaskill, Claire McCaskill. Senator Gillibrand was silent on the whole thing. As a matter of fact, I had asked for an appointment. I was given one to brief her on the program and when I got there, her people came out into the conference area and said the senator’s not going to meet with you today, there’s nothing you can say that will change her mind. So, we had, you know, it was an interesting kind of bipartisan moment because you had Democrats fighting Democrats and Republicans joining with the Democrats. It was kind of neat to watch the process. But, you know, they were largely very much in favor of the program and now it’s mandated in law. And I think that’s great.

You know, we started, again, with 87 percent unreported and 13 percent reported, half of those, you know, were restricted sense. And the numbers started to go up and it multiplied like three times. And that was all about trust in competence in the system because I had somebody on my side, so the victim says, and I think they were feeling less abused by the process and we pulled a lot of anxiety off their shoulders by doing so. I got feedback about a year on the program. I remember one victim wrote me a letter. She said, "You know, I was on the verge of suicide and then I got a phone call, Special Victims' Counsel, you know, wanting to talk." And she literally said , "He saved my life." So, and I thought that that’s pretty good idea then. That’s a great outcome. And we heard from many others just, you know, I said, "I couldn’t have got through this process alone." So, I think the, you know, the feedback that we got pretty much as proof in the pudding that it was working.

I was also worried about how many times a victim is interviewed and I got criticized for worrying about (A), what Congress was going to do, you know, some political animal, and you know, because they wanted to save the UCMJ I guess. And how many times a victim is interviewed [inaudible] without a counsel, it’s kind of a one-sided match. So, a captain’s interviewing a two-striper is what happens and if they do that repeatedly, and the victim decides I just don’t want to do this anymore, well then that may be an okay decision. But wouldn’t it be better if there was a counsel in the room that says, "Hey you asked that and that’s been answered and let’s move on." And that’s what the SVCs are there to do.

Getting the Program Off the Ground 

Maj Hanrahan:

Yes, sir. And obviously there is a lot of resistance to kind of get this program off the ground, which is incredible how this all kind of came to pass and you were able to successfully do that. But then implementing the program, right, and seeing how this program was going to kind of “play out” through the military justice process, what were some of the biggest obstacles or challenges that you could foresee that you would face, maybe even in that first year and getting the program off the ground successfully?

Lt Gen Harding:

I elected, because of course TJAG has assignment authority, but I elected to hear from the MAJCOM SJAs on those people that they thought would be good SVCs. And we got a list of folks and I took some of the people off the list because I disagreed with the MAJCOM SJA. And you could tell which of the MAJCOM SJAs were kind of supportive and which of them were kind of being not as supportive as they could be. And then we decided we would do training and so I called on the experts, because we don’t know all of this. I mean I have worked court cases where there been counsel for the victim and I get that, I’ve never been a counsel for a victim. I’ve been a prosecuting attorney, I’ve done some defense work, but I’ve never done that.

So I called on the University of Oregon School of Law, Meg Garvin, Professor Meg Garvin, who runs the National Crime Victim Law Institute, and said, "Meg, I really need your help." And I met her through Chuck Blanchard, the General Counsel for the Air Force, then I visited with her and I asked her to come down and help us at Maxwell, in the JAG School, train the first cadre. And she did. She was so gracious with her time and came down there. 

I flew down and took a NPR reporter with me because it was important to kind of socialize this in the public's eyes because we were—we had taken a few black eyes, several, on sexual assault. There’s no way you can suggest that 26,000 sexual assaults in a year is a good thing. It’s not. It’s ugly. So I took him down there, I said, "You know, report on what you want to report", and we sat in the large auditorium with the rest of them, and I charged them to understand that there is a lot of pressure on what they are about to do. There were a lot of people that were hoping for success, but that they needed to know that the eyes of the nation were on them. And then I turned it over to Meg, said "She’s going to tell you about the details."

And Meg did. She went into how to represent a victim and some of the bio neurology that goes into this and it’s really important to understand that. There is a great psychologist at the University of Minnesota, Rebecca Campbell, a PhD, whose done lots of studies on this. And so it’s important to understand when a victim freezes, that’s tonic immobility, it happens quite a lot, where they don’t say anything, they don’t move, they’re just—they are just thinking that, you know, it’s kind of been out of body almost experience. There is fragmented memory where they can’t piece together what happened first, second, or last. You know, there’s flat affect immediately after, that if there’s a fresh complaint, because the dopamine in the system, they’re not going to be screaming "Hey, you know, you need to do something" like if somebody stole your car. They don’t scream that way. But instead, they are very matter-of-fact and a lot of law enforcement officers take that to mean that they are not really credible. So we talked about all of those things that they were going to have. So it’s more than just a practice the law, they need to understand some of the psychology that goes along with this.

We actually use that as well to train others. I brought Rebecca Campbell, Doctor Campbell, up to the Pentagon to train others so they knew what we were dealing with. And a lot of these things were not unusual. They are to be expected. And then we turned them loose. I told them I want each of you to go to the base where you’re assigned and we initially kept them at the base where they were assigned, there were so many objections within the Air Force, the Vice Chief of Staff asked me not to reassign anybody for the time being. So I said,  "Go and find office space, there’s got to be something there, and then get a sign, and we’ve got, you know, the civil engineers can make you a sign that says Special Victims' Counsel, and you open your shop."

The Assistant Vice Chief of Staff called me to his office twice to tell me that I needed to go and tell General Welsh that the program wasn’t working. I said, "What are you talking about?" 

So somebody had talked to the CVA, Vice Chief of Staff, I said, "It is working. You know, I’ll tell him in a heartbeat if I thought something wasn’t working." And he didn’t understand the legalities of it. He was just told that what we were doing is going to be illegal and it, of course, isn’t. So, we went through all of those machinations. 

And then we got people running and they were doing great work. They were sending me pictures of the sign in front of the building [laughter]. So I said, "All right, we’ve got a footprint" and then the Vice Chief of Staff, finally, I went to him and I said. I had to brief the Air Force Counsel, and I said "We’re doing this program. I’m not going to ask you for any money, but you need to know we’re doing this program. I’m going to divert some of my salary money from base legal offices into this program." And I said, "I may have to cut back a little bit on legal assistance."

There were some objections in the room, but it won the day and the Vice Chief of Staff, who chairs the Air Force Counsel, said "Yeah, you can go ahead and move your people to where you need them."

So we started doing that. So that was really—it took us, gosh, most of a year to get to that point. And that’s just you know, trying to get people used to change. Change management is hugely important and it can lock people up like a case of the bends and you just can’t do it all at once. So, but we got there.

Part One Conclusion

Maj Hanrahan:

That concludes part one of the interview with Lieutenant General Harding. In part two, we continue discussion on the SVC program, including the seminal case of LRM v. Kastenberg, that afforded victims counsel certain legal rights on behalf of their clients, how universities across the country are now modeling aspects of military procedure in their administrative Title IX sex assault cases on campus, and in General Harding’s views on how to effectuate positive change. 

If you like this episode, please consider subscribing on Apple podcast or Spotify and leaving a review. This helps us to grow in outreach for the betterment of the Air Force and the JAG Corps. See you on the next episode.

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Glossary

• CLE: continuing legal education
• DA: district attorney
• JAG: judge advocate general
• MRE: Military Rules of Evidence
• SECDEF: Secretary of Defense
• SECNAV: Secretary of the Navy
• SVC: Special Victims' Counsel
• TJAG: The Judge Advocate General
• UCMJ: Uniform Code of Military Justice