|
Article Excerpt
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.
**********
The Concept of Evil in Australian Courts
It is an unusual week in the print media for the concept of evil not to be raised. Indeed, in recent years we have seen the headlines, "Hear no evil, see no evil" (Sydney Morning Herald, 24 May 2003, in relation to the murder of four children by their mother), "How evil overwhelmed the Van Krevel family" (Illawarra Mercury, 7 April 2003, in relation to two mutilation murders), "Evil stalked teenage girl" (Newcastle Herald, 6 March 2003, in relation to an abduction attempt) and "'Evil predator' kept woman slave in garage" (The Age, 19 February 2004, in relation to the indecent assault of a woman over a considerable period of time). Such use of the word "evil" in the popular media is commonplace, particularly when describing criminal behaviour.
From the public's perspective, then, evil is a concept that frequently confronts Australia's legal system in its capacity as society's arbiter of right and wrong, good and bad. However, the powerful imagery and religious undertones evoked by the word "evil" (see Greig, 1996, for a comprehensive discussion) do not sit comfortably alongside the law's commitment to the principles of logic and reason. Accordingly, the question "What is evil?" is one that has traditionally been left to the moral philosophers and theologians, and has been avoided by the courts on the basis that it risks adding a moral dimension to the judicial task of attributing blame and, in turn, has the potential to unseat the rational accounting system on which the legal system prides itself. As stated by Jones (1994, p. 302) "[L]awyers would do well just to concern themselves with bad deeds ... that is, to deeds which society has determined are criminal (p. 302).
However, the fact remains that there exists a spectrum of "bad deeds" which confront the criminal courts and at the extreme end of this spectrum sit those crimes that are so disturbing that they seem intrinsically different from the more usual crimes. Examples of such extreme criminal excesses include the serial murders committed by Ivan Milat, the mass murders committed by Julian Knight and Martin Bryant, and the child sex murder committed by Robert Selby Lowe. The horrific nature of such crimes means that they have the strong potential to induce in the public's mind the attribution of evil. However, how do Australian courts characterise such extreme criminality if the concept of evil is anathema to the legal discourse?
The first part of this article explores the answer to this question and 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 which is quantifiable and empirically based. However, just as the law has steered clear of the concept of evil, so too have the mental health professions, "as if [evil] is unscientific because it cannot be easily categorised or comprehended" (Greig, 1996, p. 163). Instead, a review of Australian judicial decisions reveals that the diagnoses of antisocial personality disorder (ASPD) and psychopathy have emerged to cover the gap in the law's vocabulary left by the absence of evil. Indeed, taken together, these diagnoses cover the gap reasonably well. ASPD is characterised by a childhood history of antisocial behaviour which has continued into adulthood and has manifested itself in such behavioural symptoms as impulsivity, aggressiveness, irresponsibility, recklessness, deceitfulness and a lack of remorse for misdeeds (Diagnostic and Statistical Manual of Mental Disorders [DSM-IV] American Psychiatric Association, 1994). Psychopathy constitutes a small subgroup (estimated at between 15-30%) of persons diagnosed with ASPD and represents a personality construct comprised not only of the behavioural characteristics of ASPD, but also of various affective (e.g., callousness, lack of remorse) and interpersonal (e.g., pathological lying, egocentricity) processes (Cleckley, 1976; Hare, 1993).
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? The second part of the article considers this question by examining the way in which the courts have characterised ASPD and psychopathy and reviewing the judicial implications, especially in relation...
|
