(2) is a claim that warrants supporting evidence. You seem to be claiming that criminality (and that is what we are talking about here) is 'dependent on...a protective and enabling culture'. Or are you making a special pleading for rape? Mental incapacity is when someone cannot understand relevant information or cannot appreciate what may happen as a result of decisions they make drunk 1. intoxicated with alcohol to the extent of losing control over normal physical and mental functions You tell me how these significantly differ. Is the inability to understand relevant information and appreciate the results of decisions any different from losing control over one's mental functions? So if Labeling Theory is correct, it is creating more potential rapists.