南京某大学原副教授马某因“换偶”涉嫌“聚众淫乱罪”被南京检方起诉,经法院审理被判处3年零六个月的有期徒刑。此事件在社会上引起广泛探讨,很多人认为,聚众淫乱的最大特点就是参与人都出于自愿且无受害人,所以,刑法不应该惩罚这种行为。著名社会学家、性学家李银河曾发文为马某申辩,她表示“公民在隐私的场所自愿施行性活动的权利应当受到宪法的保护”。本文观点是本案马某等人在被办案人员发现时,有五人在同一时间地点从事性活动,符合现行刑法规定的聚众淫乱罪的构成要件。然而,我们想进一步讨论分析,在社会逐渐开放、性自由越来越被提倡的情况下,聚众性行为一直只被刑法确定为聚众淫乱罪是否合适,或者说如何调整这种行为更符合社会的发展与进步。 Former deputy associate professor of Nanjing University Moumou “for ” alleged “mob adultery” was prosecuted by Nanjing prosecutors, the court hearing was sentenced to 3 years and 6 months in prison. This incident has aroused extensive discussion in the community. Many people think that the most prominent feature of the mob adultery is that the participants are voluntary and have no victims. Therefore, the criminal law should not punish such acts. The famous sociologist and sexologist Li Yinhe once dispatched a text to defend Ma. She said: “The right of citizens to voluntarily practice sexual activities in privacy places should be protected by the Constitution.” In this article, Ma Mou et al. Found that five people were engaged in sexual activities at the same time and place when they were found by the investigators. They are in line with the constitutional requirements of the crime of mob gathering sexual promises as stipulated in the existing criminal law. However, we would like to discuss and analyze further. With the gradual opening-up of society and the increasing promotion of sexual freedom, mass behavior has always been confirmed by criminal law as the appropriateness of crimes of mass mobilization or how to adjust such behavior more in line with social Development and progress.