Obscenity report to be rejected by TBI

Wednesday, January 21, 2009

PETERSBURG - "Promotion of obscene material" is the offense listed in a police report from the incident between an alderman and the town recorder last fall, according to the police chief's report filed more than two months after the complaint.

However, the Oct. 31 incident reported by the recorder on Nov. 5 does not fit the Tennessee Bureau of Investigation (TBI) Tennessee Incident Based Reporting System (TIBRS) parameters, meaning it's not a crime the TBI tracks for statistical purposes, according to Kristin Helm, spokeswoman for the TBI.

Therefore, when TBI officials review reports from Petersburg Police, the Nov. 5 report should be removed, Helm said.

Furthermore, "Our crime statistics auditors don't feel like this incident is criminal," Helm said Friday when asked about the TIBRS report filed by Police Chief Larry Hardin.

Mayor John Cowden was quoted Jan. 9 answering a question on whether the incident was a criminal offense or a matter for a civil court. He said, "It depends on how far the investigation goes on whether it's a crime, or not."

Asked about that, Helm replied, "Show me the TCA (Tennessee Code Annotated, state law) that makes this a crime rather than a workplace harassment issue."

Helm also said the auditors' conclusion about harassment was based on their reading of the narrative in the incident report as filed by Hardin.

The chief listed two sections of state law: One defines terms on nudity and materials offensive to community standards, and; another says display of material found to be legally obscene is unlawful.

Town Recorder Dawn Forlines told Hardin "that she had been offended by a picture that Tony Nichols (the accused alderman) had shown her... The picture was of vice presidential candidate Sarah Palin," according to Hardin's report to TIBRS. "The picture was on his cell phone. He did this even when she stated that she did not wish to see it.

"The picture was the head of Sarah Palin that appeared to be superimposed on a naked female body," Hardin wrote to TIBRS based on statements from Forlines.

Nudity, according to state law, includes showing all of an uncovered female breast, but it's unclear whether that's obscene because the state law cited by Hardin doesn't define, among other things, "contemporary community standards" regarding obscenity.

"We're more liberal than we used to be," Cowden said in a telephone interview Sunday afternoon. "I'm sure the charter was written in a conservative time."

Town code notwithstanding, Cowden favored ouster of Nichols and said he "would be afraid to put that (digital image from the cell phone) in a work place."

Petersburg's Board of Mayor and Aldermen voted Dec. 15 to remove Nichols from office.

Creating a hostile work place can lead to dismissal, Cowden said.

"That would get you dismissed (where he works at a factory in Shelbyville) ... anything that offends ... that type of material," Cowden said.

During a Friday interview with the TBI spokeswoman, it was clear that Bureau employees weren't issuing final judgment on an issue as complicated as obscenity or harassment at a workplace. For example, she said that if the image bearing Palin's face was similar to a so-called pin-up or girly photo, "That would have to be determined by a prosecutor."

Still, Hardin's report to TIBRS listing an alleged incident of promotion of obscene material was of an offense that the state does not track for statistical purposes, Helm said. It's not one of the 26 offenses being tracked. Tennessee keeps statistics on more crimes than the federal government.

"When we audit them, we will ask that it be removed," Helm said of a pending request to Petersburg Police.

Department reports are audited to be sure that data is being correctly entered, she said.

However, she said, "Pornography is a reportable offense; one of the 26 crimes against persons" tracked by the TBI through TIBRS.

Hardin was offered an opportunity to state his position and he replied, "I don't have any comment about this incident, whatsoever. I don't have a vote in this anyway."

He referred such questions to Vice Mayor James Owen. Calls to Owen's home phone were received by an answering machine and resulted in no response as of press time.

Based on Hardin's limited reply, which included a few other statements, it's clear that Hardin sent the report to TIBRS and it would appear that he's the official who selected the state law cited in the report regarding obscene material.

Nichols was reached by phone Sunday evening and asked what he'd say about the TBI's reaction to Hardin's report to TIBRS.

"I'm not really sure," Nichols replied.

He's got an attorney now and referred various questions to his lawyer.

Meanwhile a couple of things have been revealed about for the passage of time between Forelines' complaint to Hardin on Nov. 5 and the chief's filing it with TIBRS on Jan. 13.

Petersburg has been filing TIBRS reports with an Internet "web-based" reporting system since November, Helm said.

Owen said the TIBRS report became available at Town Hall after it was filed with TIBRS.

Prior to that, it was not available as a public record at Town all, Forelines said, because Owen had it.