Bureau for International Narcotics and Law Enforcement Affairs, Human Smuggling and Trafficking Ctr.
January 1, 2005
Distinctions Between Human Smuggling and Human TraffickingPDF version
This fact sheet will explain the differences between human smuggling and human trafficking. Because these are complex crimes, it is not always readily apparent when a "human smuggling" case crosses into the realm of a "human trafficking" crime. Understanding the basic principals outlined in this fact sheet will assist the reader in identifying the subtle differences between each of these crimes. For this discussion, the terms "human trafficking" and "trafficking in persons" refer strictly to "severe forms of trafficking" as defined in 22 USC 7102 .
As in any other area involving complex crimes, it is important to gather and examine as many relevant facts as possible, compare the fact pattern against relevant statutes, and when necessary, seek expert legal advice in making determinations.
Trafficking in persons and human smuggling are some of the fastest growing areas of international criminal activity, according to the United Nations. It often involves a number of different crimes, spanning several countries, and involving an increasing number of victims. Trafficking in persons (TIP) can be compared to a modern day form of slavery. It involves the exploitation of people through force, coercion, threat, or deception and includes human rights abuses such as debt bondage, deprivation of liberty, or lack of control over freedom and labor. Trafficking can be for purposes of sexual exploitation or labor exploitation.
According to U.S. Government estimates, 800,000 to 900,000 victims are trafficked globally each year and 17,500 to 18,500 are trafficked into the United States. Women and children comprise the largest group of victims. Trafficking victims are often physically and emotionally abused. Although TIP is often an international crime that involves the crossing of borders, it is important to note that TIP victims can be trafficked within their own countries and communities. Traffickers can move victims between locations within the same country and often sell them to other trafficking organizations.
While there are significant differences between TIP and human smuggling, the underlying issues that give rise to these illegal activities are often similar. Generally, extreme poverty, lack of economic opportunities, civil unrest, and political uncertainty, are factors that all contribute to an environment that encourages human smuggling and trafficking in persons.
Although there are similarities in the conditions that give rise to TIP and human smuggling, there are distinct differences in the expectations and treatment of persons being smuggled and the victims of human trafficking. Additionally, there are significant statutory differences between TIP and human smuggling.
Human smuggling is the facilitation, transportation, attempted transportation or illegal entry of a person(s) across an international border, in violation of one or more countries laws, either clandestinely or through deception, such as the use of fraudulent documents. Often, human smuggling is conducted in order to obtain a financial or other material benefit for the smuggler, although financial gain or material benefit are not necessarily elements of the crime. For instance, sometimes people engage in smuggling to reunite their families. Human smuggling is generally with the consent of the person(s) being smuggled, who often pay large sums of money. Once in the country of their final destination they will generally be left to their own devices.
The vast majority of people who are assisted in illegally entering the United States are smuggled, rather than trafficked.
It is also possible that a person being smuggled may at any point become a trafficking victim.
The Immigration and Nationalization Act, Section 274(a)(1), (2), provides for criminal penalties under Title 8, United States Code, Section 1324, for acts or attempts to bring unauthorized aliens to or into the United States, transport them within the U.S., harbor unlawful aliens, encourage entry of illegal aliens, or conspire to commit these violations, knowingly or in reckless disregard of illegal status.
Trafficking in Persons
On October 28, 2000, Congress passed the Victims of Trafficking and Violence Protection Act of 2000 ("VTVPA"). The VTVPA is a comprehensive statute that addresses the recurring and significant problem of the trafficking of persons for the purpose of committing commercial sex acts, or to subject them to involuntary servitude, peonage, debt bondage, or slavery. It also is designed to increase the protection available to victims of trafficking and other types of violent crimes. It is an attempt to address these issues on a national and international level, and affects many government and non-government agencies and organizations.
Unlike smuggling, which is often a criminal commercial transaction between two willing parties who go their separate ways once their business is complete, trafficking specifically targets the trafficked person as an object of criminal exploitation. The purpose from the beginning of the trafficking enterprise is to profit from the exploitation of the victim. It follows that fraud, force or coercion all play a major role in trafficking.
It may be difficult to make a determination between a smuggling and trafficking case in the initial phase. Trafficking often includes an element of smuggling, specifically, the illegal crossing of a border. In some cases the victim may believe they are being smuggled, but are really being trafficked, as they are unaware of their fate. For example, there have been cases where women trafficked for sexual exploitation may have knowingly agreed to work in the sex industry and believed that they would have decent conditions and be paid a decent wage. What they did not realize is that the traffickers would take most or all of their income, keep them in bondage and subject them to physical force or sexual violence. Or, the victims may have believed they were being smuggled into the United States where they would be given a job as a nanny or model, later realizing that the so-called smugglers deceived them and that they would be forced to work in the sex industry.
Conversely, persons being smuggled willingly enter into "contracts" with the smugglers to work off a smuggling debt. They may live in squalid conditions, but when the debt is paid, they are free to leave. Thus, it is often necessary to look at a person’s final circumstances to determine if the person is willingly complicit in a smuggling endeavor, or the victim of traffickers.
According to The Trafficking Victims Protection Act of 2000, severe forms of trafficking in persons always includes the recruitment, harboring, transportation, provision, or obtaining of a person for one of the three following purposes:
Human trafficking does not require the crossing of an international border - it does not even require the transportation of victims from one locale to another. Victims of severe forms of trafficking are not all illegal aliens; they may, in fact, be U.S. citizens, legal residents, or visitors. Victims do not have to be women or children - they may also be adult males.
While trafficking victims are often found in sweatshops, domestic work, restaurant work, agricultural labor, prostitution and sex entertainment, they may be found anywhere in the U.S. doing almost anything profitable to their handlers. Victims may not even recognize that they have been victimized, or may be forced into protecting their exploiters, so self-proclamation of their status is not required.
The Trafficking Victims Protection Act of 2000 also provides tools to combat trafficking in persons both worldwide and domestically. The Act recognizes the need to protect the victims while gaining their cooperation by providing a safe haven. Section 107(c)(3) reads: "Authority to Permit Continued Presence in the United States.--Federal law enforcement officials may permit an alien individual's continued presence in the United States, if after an assessment, it is determined that such individual is a victim of a severe form of trafficking and a potential witness to such trafficking, in order to effectuate prosecution of those responsible, and such officials in investigating and prosecuting traffickers shall protect the safety of trafficking victims, including taking measures to protect trafficked persons and their family members from intimidation, threats of reprisals, and reprisals from traffickers and their associates."
Differences Between Human Trafficking and Smuggling 
In some cases it may be difficult to quickly ascertain whether a case is one of human smuggling or trafficking. As will be illustrated in the scenarios below, the distinction between smuggling and trafficking are often very subtle, but key components that will always distinguish trafficking from smuggling are the elements of fraud, force, or coercion. However, under U.S. law, if the person is under 18 and induced to perform a commercial sex act, then it is considered trafficking, regardless of whether or not fraud, force, or coercion is involved.
Case Examples and Scenarios
Section 7202 of the Intelligence Reform and Terrorism Prevention Act of 2004 established the Human Smuggling and Trafficking Center (Center). The Secretary of State, the Secretary of Homeland Security, the Attorney General and members of the national Intelligence Community oversee the Center. The Center will achieve greater integration and overall effectiveness in the U.S. government’s enforcement and other response efforts, and work with other governments to address the separate but related issues of human smuggling, trafficking in persons, and criminal support of clandestine terrorist travel. Human smuggling, terrorist travel and trafficking in persons are transnational issues that threaten national security.
 The "Trafficking vs. Smuggling" chart on this page does not provide a precise legal distinction of the differences between smuggling and trafficking. The chart is designed to illustrate general fact scenarios that are often seen in smuggling or trafficking incidents. Fact scenarios are often complex; in such cases expert legal advice should be sought.