Since 1975 a number of laws have been passed in Austria to define precisely what constitutes mental incompetence and what measures should be taken to treat mentally ill offenders. With very mentally disturbed or mentally deficient offenders culpability or its lack can be determined, but ascertaining the extent of culpability for other types of mental disturbances is more difficult. The difficulties are alleviated somewhat by a special series of regulations for individuals who are less than mentally disturbed but still 'psychologically abnormal.' Unfortunately, the meaning of the latter term is unclear. It is virtually impossible for a psychiatrist to determine whether an offender could have controlled his impulse to commit an offense. Any expert opinion can only consist of a list of subjectively observed states of consciousness. Since the passage of the exculpation norms in 1975, twice as many mentally incompetent offenders as previously have been excused from penalties, probably because there are now better means of placing mentally incompetent offenders in treatment instead of incarcerating them for protection of society. However, psychopaths and neurotics not far outside the range of the normal are to be placed in medical treatment only if they have exacerbated their conditions through drug use. Thus, 'mild' mental disturbances are classified as mental illness but not as legal grounds for mental incompetence. In general, the fact that psychiatric and legal definitions of mental incompetence diverge remains one of the serious problems in dealing with mentally ill offenders. The mistaken belief of the public that psychiatry and justice can always reach the right decision must be altered. Notes are supplied.