Blurred Lines: When Smuggling Transforms into Trafficking, Victims are Still Treated like Perpetrators

By Radha Desai

Human trafficking and human smuggling are two issues that, despite their stark differences, are often conflated in academia, media, and most harmfully, law enforcement. The characterization of an incident as either trafficking or smuggling dictates law enforcement’s response to—and treatment of—all individuals involved.

For example, victims of human trafficking are entitled to bring suit against their traffickers, access much-needed social services, and seek immigration relief in the hopes of obtaining legal status. Conversely, individuals are presumed to have been smuggled voluntarily, thereby warranting treatment as violators of U.S immigration laws, participants in a criminal act who are swiftly detained or deported.

This disparity in treatment, stemming from the perceived responsibility of the individuals involved, can be explicated through four elements: the coercion/consent paradigm, transnationality, exploitation and sources of profit. Victims of trafficking are coerced, whereas individuals are smuggled with consent. Smuggling must involve illegal entry across international borders, whereas trafficking does not require movement across borders. Trafficking victims experience ongoing exploitation at the hands of their traffickers, whereas a migrant’s dealings with their smuggler terminates upon arrival at the desired location. Finally, a smuggler’s profits are derived from the cost of facilitating a successful border crossing, whereas traffickers derive profits from the exploitation of their victims.

These elements provide what appears to be an easy, black and white guide to classifying trafficking and smuggling incidents. But what happens when one crimes bleeds into the other, as increasingly happens at the U.S./Mexico border?

Many migrants who initially consented to being smuggled across the border find themselves held captive and trafficked for labor or sex once in the United States. Smugglers may seek the higher and steadier profits that trafficking ensures, and they gain added leverage over victims who have voluntarily violated U.S. immigration laws. Mexico’s most infamous drug cartels have also entered this illicit enterprise in the hopes of diversifying revenue streams with fewer risks.

As law enforcement officials struggle to adapt to this unique amalgam of two crimes, the consequences are borne by the victims who are treated as perpetrators. In many cases, individuals who are smuggled into the country do so for family reunification purposes.  However, once smuggling transitions into trafficking, family members aware of the situation are hesitant to seek help from law enforcement due to the adverse immigration consequences for their loved ones.

Remember, smuggling entails consent, which means there is no distinction, in terms of culpability, between smugglers and those smuggled. The fact that these individuals are now victims of human trafficking is unfortunate, but in the eyes of the law, their initial entry was criminal and they will be treated accordingly. This approach severely hinders victim identification, rescue, and rehabilitation.

This conundrum will dissipate only through a victim-centered approach that emphasizes cooperation, not criminalization. The threat of deportation should not be used as a sword against victims and a shield for traffickers. Victims of human trafficking should, despite voluntarily entering the country, be treated as individuals whose basic rights have been gravely violated.

Not all migrants who are smuggled into the United States are victims of human trafficking, but many victims of human trafficking are voluntarily smuggled into the country and this initial violation, which carries the consequence of deportation, will keep victims hidden in the shadows until law enforcement changes its approach.


Published on July 16, 2015


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