They Put the Boy’s Family on Trial

The boy came into Fairfax County Circuit Court shortly before four o’clock on December 20, 1988, after waiting in an adjoining witness room while the man convicted of sexually abusing him prepared to testify. He was seventeen, although the abuse had begun when he was twelve, and he had already spent years receiving psychiatric treatment as his parents pursued an explanation for how a convicted offender had been placed in charge of his Scout troop. Thomas Heath of The Washington Post watched him take a seat between two attorneys, look straight ahead through much of the proceeding and occasionally write on a yellow legal pad, with the lawyers beside him sometimes offering a reassuring pat on the back. The newspaper protected his identity, and the courts identified him as Infant C., so the case could be reported without publicly naming the boy. When he looked toward the witness stand, he saw Carlton L. Bittenbender, the former scoutmaster who had already pleaded guilty to crimes involving three boys.

Bittenbender was serving a prison sentence and appeared in blue jeans and a blue shirt issued for his incarceration, yet the questions that afternoon allowed him to describe the accomplishments he associated with leading Scouts. He spoke about helping eighteen boys earn the Eagle rank, recalled his work as a teacher and became visibly upset while trying to explain what Scouting had meant to him, until Judge Richard J. Jamborsky interrupted and reminded him that the courtroom was governed by rules of evidence. According to Heath’s account, the judge refused to let him make a speech in place of answering questions. The boy remained between his lawyers during this testimony, having returned for the first time since opening day to a civil proceeding in which his own family was being questioned about the causes of his suffering. The judge’s interruption ended one of the man’s explanations, although the boy would remain in court as the civil trial examined his family and the consequences of the abuse.

The screening he was promised

Five years earlier, Troop 1970 in Reston, Virginia, had been looking for a scoutmaster after going several months without one, and Bittenbender, newly arrived from Rhode Island, offered himself for the role. The volunteer troop committee interviewed him two or three times and selected him in January 1984, giving him authority over boys including Infant C., then twelve. His previous involvement in Scouting was visible to the people considering his application, while a criminal conviction from that earlier service was not: in 1981 a Rhode Island court had convicted him on four counts of sexual assault involving one Scout, following a plea of no contest, and imposed a suspended five-year prison sentence conditional on probation and psychiatric treatment. The conviction preceded his appointment in Reston, but it was absent from the national organization’s confidential exclusion file when the local troop committee selected him. Instead, the local committee placed him in the position that would give him access to another boy.

The Virginia Supreme Court later reconstructed the failure without needing to speculate about the knowledge of any national employee. A Scout executive in Rhode Island had intended to notify national headquarters following the conviction and thought the necessary paperwork had been sent, but after Bittenbender’s Virginia arrest the executive checked his records and discovered that no warning had gone out. His name therefore never reached the confidential national exclusion file before the new allegations emerged. At the same time, national registration was lagging behind events in Reston: although Bittenbender had taken charge in January, his adult application was not dated until September 13 and did not arrive at headquarters until November 14, after he had been acting as scoutmaster for most of the year and after his abuse of Infant C. had begun. The national office had not selected or retained him, a distinction the later jury would treat as legally consequential, but the delay and missing report meant the check offered to parents was incapable of preventing the harm this family would report.

The boy’s mother had been encouraged to place him in the Reston troop by a local Scouting registrar who, according to journalist Patrick Boyle’s later investigation, assured her that a national computer system in Texas checked volunteer names for disqualifying information. For a parent weighing whether to entrust a child to an established youth organization, that assurance was about the adults who would be allowed unsupervised authority, even though she could not see the files or verify whether the comparison had actually occurred. Boyle’s account of the mother’s recollection was published in 2010, long after the criminal conviction and civil trial, while the court record independently established the missing Rhode Island report and late arrival of the Virginia application. She had been given reason to trust the screening process without access to the records that might have revealed whether the man standing before the troop committee had already harmed another child.

After the disclosure

The first concerns raised within the Reston troop came to its committee in May 1985, when another father reported Bittenbender’s inappropriate involvement with his son and the committee obtained the scoutmaster’s resignation. Infant C. told his own parents about the abuse in July, and they contacted Fairfax police, setting in motion a criminal prosecution that concluded on October 25 with Bittenbender pleading guilty to five felony counts involving three boys. Fairfax prosecutor Melinda Norton explained that one reason for accepting a guilty plea was to spare children the experience of testifying in the criminal courtroom. By then Infant C.’s schooling and health had been severely affected, with the Virginia Supreme Court later recounting his withdrawal from school and inpatient psychiatric treatment among the largely uncontested allegations in the civil complaint. The criminal case established what the adult had done; it could not return the years that the child had spent dealing with its effects, or answer why people in a second troop had placed him in Bittenbender’s care.

The mother began trying to understand whether other families had received similar assurances, and Boyle reported that she searched a computerized news database until she located coverage of ten other Scouting abuse cases. She did this after local officials had described abuse in Scouting as unusual, and her findings gave the parents a basis for demanding an explanation that extended beyond one man’s wrongdoing. Families connected to the Reston troop also formed a committee to press for better volunteer screening and education about sexual abuse; Judy Etheridge, its chair, later described meetings in which local Scouting professionals rejected those proposals. Those parents had relied on the organization to decide which adults were fit to lead their children, and now they were asking its officials to take responsibility for the consequences of a decision that had exposed boys to a convicted offender. They were seeking changes while their own families were still living with the consequences of a criminal case, and the mother’s research would eventually help bring the Scouts’ confidential records into scrutiny during the civil proceedings.

The family before the jury

When the family’s civil action reached a jury in December 1988, the man who abused the boy had already been convicted, so the lawyers representing the Scouting defendants disputed the extent of organizational responsibility and argued over what had produced his psychological injuries. In opening statements reported by Heath, defense counsel Barry Bach and Robert E. Cadigan directed attention toward the family’s private circumstances, with Cadigan specifically invoking allegations about the father’s homosexuality, drinking and care of his son as an alternative explanation for the teenager’s distress. These statements were arguments made by lawyers seeking to limit their clients’ civil exposure; they were not a finding that the father’s sexuality caused harm, and they did not alter the criminal facts about the adult scoutmaster. Yet they placed a parent’s intimate life before strangers while his child’s suffering was being assessed, compelling the family to confront a line of attack that reached far beyond whether Scouting had responsibly screened the person given authority over a twelve-year-old boy.

The criminal plea had spared the boys from testifying in the prosecution, but the civil trial returned their experiences to public examination as jurors heard about Infant C.’s treatment, his family circumstances and the abuse he had reported. His father testified during the proceedings, while newspaper accounts also described questions about his mother’s relationship with Bittenbender; the jury was asked to consider such information as the defendants challenged the claimed cause and extent of the boy’s injuries. That was the setting in which he returned in December to hear Bittenbender speak about his years in Scouting, and it is also the setting in which the boy’s own account of the relationship and its effects would be heard during the weeks of testimony. His parents had reported the abuse and spent years pursuing a civil case, only to find themselves answering questions about their family’s private life when they tried to establish who else should have prevented the harm. The trial required the family to recount painful events in a forum where its private history was being examined for reasons the defense considered useful.

The case reached well beyond testimony about one troop when the plaintiff’s attorneys introduced two boxes of confidential Scouting records containing 231 files on adults accused of abusing boys between 1975 and 1984. Judge Jamborsky admitted the files into evidence but restricted the examples the jury could inspect, rather than turning the whole collection over for jurors to read. Their existence showed that the Scouts had long maintained reports about adults whose conduct raised concerns, and testimony concerning the file system became relevant because Bittenbender had been convicted in one council’s territory before being approved by volunteers in another. The reason his own history had not appeared in the national record was specific: the promised warning from Rhode Island never arrived. The documents did not establish that national headquarters secretly knew about his conviction before the Virginia arrest, and the eventual verdict did not hold national BSA liable, but the proceedings demonstrated that families had been asked to rely on a process vulnerable to both missing warnings and late applications.

After almost six weeks of testimony and seven days of jury deliberations, the decision came in January 1989: the National Capital Area Council was found negligent in the selection or retention of Bittenbender and Infant C. was awarded $45,000, while national Boy Scouts of America was not held liable because jurors concluded it had neither selected nor retained him. National spokesman Frank Hebb publicly characterized the outcome as vindication for Scouting, although that description sat beside a binding judgment against the local council. For the boy and his parents, the award also had to be understood alongside the evidence that treatment expenses had already reached $58,907, with further questions about the costs of litigation unresolved. Their attorney, Douglas Wessel, reacted with visible disappointment and told reporters, “This boy deserves better than this.” The jury had acknowledged that a Scouting organization was responsible, but the family had spent years trying to make the adults involved answer for what happened to a boy whose care already cost more than the damages figure the jury selected.

The judgment and its price

The litigation continued because the trial judge had dismissed claims against Bittenbender himself after finding that proof of deliberate conduct did not fit the negligence claims as pleaded. In April 1990, the Supreme Court of Virginia upheld the judgment favorable to national BSA and left the verdict against the local council final, but ruled that a claim alleging willful or wanton misconduct against Bittenbender could proceed. That decision permitted a further civil trial against the imprisoned offender without determining what its outcome would be, and it also reopened the question of who should pay the lawyers the court had appointed to represent him. The fees mattered because the earlier trial had already produced a judgment for the boy, and the law governing the defendant’s representation could affect how much of that award might remain available if the family chose to collect it. What followed was a ruling on costs that would make the consequences of continuing the case unusually severe for the plaintiff.

Two court-appointed representatives of the imprisoned Bittenbender had incurred $37,273.90 in fees and expenses during the civil case, while a separate $18,285 award for the child plaintiff’s appointed representative was payable directly by the National Capital Area Council. The two amounts belonged to different obligations, although it was the much larger charge for Bittenbender’s representation that placed Infant C. in a difficult position. On February 26, 1991, Judge Jamborsky interpreted Virginia’s statute governing the costs of obtaining another trial and held that the boy must first pay costs from the earlier proceeding, including the appointed lawyers’ fees, if he wished to try the reinstated claim against the man who had abused him. The judge recognized the harshness of that result, yet concluded that the statutory language required it. The family had sought to hold responsible an adult already convicted of sexually abusing children; in order to continue its civil action against him, the court was requiring the young plaintiff to deal with the cost of representation provided to that same defendant.

The judge examined what would happen if Infant C. instead collected the $45,000 judgment that was already final against the local council. After deducting the $37,273.90 allocated to Bittenbender’s appointed representatives, the court calculated a possible remainder of $7,726.10, while a decision to press ahead against Bittenbender risked additional expenses and the need to satisfy the earlier costs first. The published decision does not establish that the family actually received that smaller amount, and it would be inaccurate to describe the calculation as the survivor’s final payment. What is documented is the choice the law had placed before him after the criminal plea, the months of civil testimony and the appeal: collecting an award that could be heavily diminished by the offender’s representation costs, or carrying on against the offender with still more legal expenses ahead. His mother had once been told a computerized national check helped keep unsuitable adults away from children; seven years later, the court was analyzing how much of her son’s civil judgment might be consumed by the cost of representing the person who abused him.

The case had begun with a boy entering a troop whose adults assured his mother that volunteer leaders were screened, and it continued through a criminal conviction, parents’ requests for stronger safeguards and a civil trial in which defense lawyers subjected his family to public scrutiny. The local council was eventually held negligent, yet the ensuing appeal and costs ruling left the young plaintiff facing choices that no childhood member of a Scout troop should have been expected to anticipate. When Heath saw him in the courtroom in December 1988, Infant C. had already spent years living with the abuse and its effects; he waited in the adjoining room, came in at about four, took his place between attorneys and listened while his convicted scoutmaster described his accomplishments. His mother had searched for the stories of other boys because the assurances she had received had proved inadequate for her own child, and by the time a judge calculated the possible remainder of his award, the family had been carrying the case for much of his adolescence. He sat between lawyers who sometimes patted his back, while the man whose abuse had brought the family into court spoke about his accomplishments as a scoutmaster; even after that trial ended, the family would continue through years of litigation in which the cost of representing the convicted man threatened to diminish the boy’s award.