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Perpetrator or victim? Man at center of Supreme Court

Published: Thursday, September 23, 2004
Page: P1A
Byline: Paul J. Nyden MORGANTOWN - After a harrowing childhood, during which he was sexually abused repeatedly, a schoolboy began molesting other children.

At age 15, he began several years in detention centers and treatment programs. Today, he is out of prison, on probation.

For seven years, he has met with counselors who praise his efforts. He has never repeated any of the inappropriate sexual acts committed when he was 14 or younger.

But this summer, the young man's nightmares returned.

At 23, Tony Dean Arbaugh Jr. has become the focus of ads during an intensely negative state Supreme Court political campaign. Republican challenger Brent Benjamin has used incumbent Justice Warren McGraw's actions in Arbaugh's case in negative advertisements.

"Now, every time I walk outside, everyone's looking and taking their kids in. It messes with me," Arbaugh, who lives in Wheeling, said during an interview Friday in Morgantown.

He said he lost his job after the ads began running.

"Last night, a cop watched me for 30 minutes while I was playing basketball," he said. "It makes me not want to go out." Tony Arbaugh was the oldest of six children. He grew up in a mobile home in Big Run, a depressed area of Pendleton County.

"If you saw where Tony grew up, it really fits some stereotypes of Appalachia," said Gary McDaniel, former director of the Chestnut Ridge Residential Treatment Center, worked with Arbaugh at that Morgantown facility.

"He lived in a compound of trailers alongside the road, in an environment where his mother sanctioned the sexual abuse of him and his little brother," McDaniel said.

"Tony and his brothers were sexually offended by a schoolteacher, by older men and women relatives. Everyone was having sex with everyone else." As Arbaugh grew older, he began initiating sexual activities himself with younger relatives and friends. That stopped after he turned 15 and came to Chestnut Ridge.

Robert Rupp, chairman of the history and political science department at West Virginia Wesleyan College, is happy Arbuaugh is speaking out.

"We have a personal story at the center of a very important campaign.

You have one story the public sees by viewing the ads," he said. "Now, we can hear the story [Arbaugh] gives. The voters have to decide.

"This is the first time in a generation we have an apparently competitive Supreme Court race and the first time in history that a judicial race has taken on such a negative tone," Rupp said.

McDaniel said, "In my opinion, Tony was victimized by his family system, school system, treatment system and the legal system.

"Now, he is being victimized by the political system. When is someone going to cut this kid a break?" 'Pimped out' at age 8 Shortly after he began kindergarten in September 1987, teachers told child protective authorities that Arbaugh was often shaking when he showed up at school and his clothes were dirty. He did poorly that year and had to repeat kindergarten.

By the time Arbaugh was 8, relatives and others were abusing him.

Suwanna Arbaugh, who had Tony when she was 15, began sending her son to pick up marijuana from a dealer who abused him.

"As a young boy, he was pimped out to have sex with a drug dealer," said Jeffrey R. Roth, a Petersburg lawyer representing Tony Arbaugh.

Suwanna Arbaugh, who was sentenced to 45 years in the Pruntytown Correctional Center for using her kids in a drug trafficking operation, has already served nine years and will be eligible for parole in 2012. Tony's dad, who has worked in a local lumber mill, separated from his mother years ago.

A month after he turned 11, Arbaugh started fourth grade in Circleville Elementary School in Pendleton County. He repeated fourth grade, too.

His teacher was Ferlin Jay Heavener, now serving time in the Mount Olive Correctional Complex after pleading guilty to 20 counts of sexual assault and five counts of delivering drugs in 1999. Arbaugh was one of his victims.

Pendleton County school officials knew about Heavener's activities at least since 1991, years before anything was done.

In an August 2002 opinion, U.S. District Judge Irene Keeley noted that Heavener often drove Tony home from school.

"The two eventually began to use drugs and alcohol together after school hours," Keeley wrote. "In the summer of 1994, after Arbaugh's 'second' fourth-grade year, Heavener initiated sexual intercourse with Arbaugh. In the following three years, Heavener and Arbaugh engaged in oral and anal sex numerous times." Five years later, Arbaugh's testimony helped send Heavener to Mount Olive.

McDaniel, his counselor, said, "Tony helped prosecute the teacher who sexually offended him and a lot of other boys. He believed it would stop someone else from being victimized in the future." Arbaugh filed a federal civil suit against the Pendleton County Board of Education and school officials in July 2001. Arbaugh will receive a $500,000 settlement in the lawsuit, state Chief Deputy Attorney General Fran Hughes told The Associated Press Wednesday.

Charleston law firm Steptoe & Johnson has already been paid nearly $150,000 in taxpayers' money for representing the Pendleton County school board.

"This was a kid in a terrible family situation. He did not do anything wrong after he was 14," said Lary Garrett, a Moorefield lawyer who represents Arbaugh.

"If you read a novel or watched a movie about this, you would ask yourself, 'How can I possibly believe this happened?' " After Benjamin's television ads began running, Arbaugh lost his job at a fruit and vegetable business, where he worked night shifts.

"This kills me," Arbaugh said. "I don't want to be alone with anyone's kid. These ads are killing my life, because they want to make themselves look better.

"I am being punished for pouring my heart out for 15 months [at Chestnut Ridge]. They are trying to set me up to fail. But I'm going to do good for me." Arbaugh began having sexual interactions with his younger brother, Brian Bennett, when Tony was 10 and Brian was 6.

"We have a good relationship now," Bennett said Wednesday. "We did things that brothers shouldn't have done. But there were never any forceful things. He never did anything forcefully." State authorities removed the children from the Arbaugh home in February 1996, when Tony was 14 and Brian was 10.

"Everything stopped then," Bennett said. "When we were first taken away, we were taken to a group home in Romney. We ran away for three months, then turned ourselves back in.

"Then, they separated us. They put me in hospitals and three or four different foster homes," said Bennett, now 19 and working at a full-time job at a fast-food restaurant.

Prosecuted as an adult Using a West Virginia law allowing a 14-year-old child to be treated as an adult for sex offenses, Pendleton County officials prosecuted Arbaugh. He pleaded guilty to sexually assaulting his younger brother.

In exchange for his guilty plea, prosecutors dropped nine other first-degree sexual assault charges against three siblings, two cousins, two nephews and two other youngsters.

On Sept. 4, 1997, Arbaugh was sentenced to 15 to 35 years in prison.

His sentence was suspended when he enrolled at Chestnut Ridge Treatment Center. He was then transferred to the Stepping Stones Group Home in Fairmont in August 1998, but he got into trouble there. After he turned 18, he was sent to the Anthony Center for Youthful Offenders in Greenbrier County.

When he successfully completed that program in August 2000, Pendleton Circuit Judge Donald H. Cookman placed Arbaugh on five years' probation. Arbaugh, then 19, got a job at a chicken-processing plant.

But four months later, Cookman revoked his probation and sent him back to serve his sentence of 15 to 35 years. During a hearing, Arbaugh admitted he violated his probation terms by drinking, smoking marijuana and failing to receive counseling.

McDaniel insists Arbaugh did very well in treatment: "In essence, he was being sent back to serve a long prison term for smoking marijuana." Arbaugh stayed at the Eastern Regional Juvenile Facility in Moundsville until the Supreme Court decided to send his case back to Pendleton County earlier this year.

"There is no evidence in the record that Mr. Arbaugh was a sexual threat to anyone. None of his alleged probation violations indicated that he was a sexual threat to the community," stated a March 2 Supreme Court opinion.

McGraw did not write that opinion, but was part of the 3-2 majority.

It is that ruling that has prompted the attacks against him in this year's campaign.

Arbaugh remembers the day of his hearing earlier this year, back in Franklin. Dressed in an orange prison jumpsuit, restrained by shackles and chains, he wasn't prepared for the judge's order releasing him.

"I had to wait till I got clothes. They had to get clothes for me at the Dollar Store. An hour after the case closed, I got released. I got in a Subaru and went to Moorefield." Arbaugh hoped it was the first leg of another new journey to a normal life.

Tony as a role model Brian Bennett, 19, thinks every day about the political ads featuring his older sibling: "I just wish this would be over with. It is very stressful." McDaniel, Arbaugh's counselor, also worries about the ads and their personal impact.

"I wish whoever was running those ads would take responsibility for their actions the way Tony is taking responsibility for his actions," he said. "I don't know who is running those ads. But I suspect whoever is running those ads is not a child. They should be ashamed. They should know better. They should know that they are lying." Benjamin's campaign is paying for some of the ads. An independent group, called "And For The Sake of Kids," is financing others.

Lary Garrett said McDaniel and another of Arbaugh's counselors, Terry Laurita Sigley of Fremouw Psychological Associates in Morgantown, "hold Tony up as a role model. Tony accepted responsibility from Day One." "When he came to Chestnut Ridge, Tony could barely read or write," McDaniel said. "His education was stolen from him.

"I like to think we live in a country where people can work hard and redeem themselves from their earlier mistakes, where children are allowed to learn from their mistakes, where they can go on to do the right things in life," he said. "Tony is not being given that opportunity." To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.

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