What can a man say to a woman on the street these days without fear of prosecution? Ever since campaigners and police forces started talking about treating the public harassment of women as a hate crime, there has been an equal and opposite push to defend some bloke’s right to ... what exactly? Shout a catalogue of sexually explicit demands at a stranger while following her down a street at midnight? Exchange friendly observations about the state of the weather in a shop queue in daylight?

As with #MeToo, this is far less complicated than some would like us to imagine

As with conduct in the workplace post #MeToo, this is far less complicated than some would like us to imagine. It’s not about some mean-spirited, man-trapping shift of goalposts, whereby behaviour that was once acceptable is now criminalised. If I’ve learned one thing from reporting on this subject over the past few years, it’s that arrests for wolf-whistling have never been on the agenda. Sue Fish, the pioneering chief constable who introduced the first pilot scheme to record misogyny as a hate crime in Nottingham in 2016, broke it down for me bluntly: “Some trivialise it and say: ‘Oh, so I can’t chat up a woman now.’ But I think there’s a significant difference between ‘Can I buy you a drink?’ and ‘Do you want some cock?’ This is about the unacceptable abuse of women because they are women and it has to stop.”

Online abuse is the focus of significant feminist activism these days, as social media platforms flail ineffectually against a torrent of cyber-misogyny. The law has struggled to keep up with technology, in particular around image-based abuses. “Deepfake” porn – producing fake pornographic images based on pictures of real people – is the latest tech-enabled sexual abuse to attract demands for a ban . But upskirting – the taking of surreptitious, sexually intrusive images, finally criminalised last week, usually on a phone – underlines that, for many women, the street and public places remain their primary experience of a hostile environment.

An evaluation of the Nottingham pilot two years on found that nine out of 10 women surveyed had either experienced or witnessed street harassment. The tens of thousands of anecdotal reports collated globally by organisations such as Hollaback and Everyday Sexism support what women have been saying for years: that casual public harassment of women is endemic, its tolerance sustaining a toxic mood music that makes more serious sexual offences easier to perpetrate and harder to prosecute.

It’s against this cultural backdrop that activists have focused on a legal solution. Following some seriously effective lobbying, spearheaded by the Labour MP Stella Creasy and civic alliance Citizens UK, the government in Westminster has now announced a comprehensive review of hate crime legislation in England and Wales, while in Scotland, the Holyrood government is already considering proposals to include gender, as well as age, as a hate crime in law.

If gender or misogyny were added as a hate crime aggravator in law, it would allow police to prosecute these offences specifically as hate crimes, just as offences motivated by hostility based on race, religion, trans identity, sexual orientation or disability already are, and courts to take this into account when sentencing.

And crucially, it would allow police to record things like verbal abuse as a hate incident, even if it does not break the criminal law. This gives them the opportunity to understand and monitor the scale of the problem, and allows more scope for them to offer victims support. Police forces can already choose to recognise additional protected characteristics: prompted by the murder of the goth Sophie Lancaster, Greater Manchester police in 2015 expanded its hate crime categories to include alternative subcultures, and a clutch of forces have adopted the Nottingham misogyny model since it began. But changing the law around misogyny would oblige all police forces to monitor it.

Review brings misogyny as a hate crime a step closer Read more

Some police officers have understandably raised concerns around the policy, in particular confusion over the basic definition of misogyny, lack of funds for appropriate officer training, or adding another layer of bureaucracy to incidents they already deal with at a time when resources are horribly stretched. Some argue that pursuing these crimes distracts from more serious offences. But as one officer told me, low-level harassment can quickly escalate if not dealt with promptly: “It’s about catching behaviour at an early stage. Today’s flasher is tomorrow’s rapist.”

It is also about trusting women to be capable of differentiating between an action intended as a compliment, however clumsy or unwelcome, and an action with significant threat attached. Even training for local police or community awareness-raising that makes men more understanding of what it’s like to be a woman walking home late at night – carrying keys between your fingers, just in case – disrupts the normalisation of street harassment. As campaigner Martha Jephcott, who trained Nottingham police, explained to me: “A really important part of the training, which is usually male dominated, is to emphasise that the average man doesn’t do this, but also to point out the hidden nature of the problem. It’s never been done to me when I’m standing next to a man.”

Hate crimes are notoriously hard to prove, and hugely under-reported, but neither of these systemic failings means that they should not be recognised by the police – the same can be said of serious sexual offences, and no one is suggesting that they be removed from the statute books. But if the law sets a framework for the levels of equality we aspire to, then surely the time has come to police the kinds of so-called minor sexist aggressions that feed a far heftier power imbalance between men and women.

•Libby Brooks is the Guardian’s Scotland correspondent