Diagnosing Evil in Australian Courts: Psychopathy and Antisocial Personality Disorder as Legal Synonyms of Evil

Australian courts have tended to avoid invoking the concept of evil on the basis that it risks adding a moral and religious dimension to the judicial task of attributing blame. How, then, do Australian courts characterise crimes that sit at the extreme end of the spectrum of “bad deeds” if the concept of evil is anathema to the legal discourse? This article argues that the law's avoidance of the concept of evil has caused it to call upon the mental health professions to provide them with an expert explanation of evil. In response, diagnoses of antisocial personality disorder (ASPD) and psychopathy have emerged to cover the gap in the law's vocabulary. However, is there any real practical difference, for legal purposes, between accepting a diagnosis of an offender as having ASPD or psychopathy and characterising that offender as evil? This article considers this question by examining the way in which the courts have characterised ASPD and psychopathy and reviewing the judicial implications that flow from such diagnoses. The extent to which expert evidence on a diagnosis of ASPD or psychopathy is empirically based is also examined and the subsequent potential for both ASPD and psychopathy to be used as powerful labelling tools, much in the same way as the concept of evil, is discussed. The article concludes by exploring ways in which the courts can talk about those cases that might encourage use of the word “evil” without resorting to stigmatising labels.