(dissenting) — In my view, the alleged child victim, E., did not “testify” at trial because she did not de*162scribe the acts of sexual contact that she had recounted in her earlier out of court statements. That being the case, evidence of the prior statements should not have been admitted.
The record demonstrates that although E. told several people, including a school interventionist and child interviewer, that her stepfather had sexually abused her, the child recanted at trial and claimed that her earlier statements, as well as her testimony at a pretrial hearing, were lies. The introduction of these hearsay statements into evidence, therefore, violated Clark’s Sixth Amendment right to confrontation and was reversible error.
The conclusion I reach logically follows from our ruling in State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997), in which we concluded that the Confrontation Clause is violated if hearsay statements of a child are admitted in cases where the child does not “testify.” In Rohrich we were confronted with a circumstance, like the instant, where a stepfather was charged with sexually abusing his stepdaughter. At trial, the State presented the testimony of four adults, who told what they allegedly learned from the child about the incident leading to the criminal charges. The child, although called as witness, was not questioned or cross-examined about the alleged child abuse. She was merely asked such questions as what she got for her birthday, what school she went to, and what her cat’s name was. The Court of Appeals reversed the trial court’s admission of the hearsay statements. State v. Rohrich, 82 Wn. App. 674, 918 P.2d 512 (1996), aff’d, 132 Wn.2d 472, 939 P.2d 697 (1997). We affirmed the Court of Appeals, concluding that the Confrontation Clause requires testimony of the child to be presented in court unless the witness is unavailable. We went on to say that the child must actively testify in order to satisfy the Confrontation Clause, indicating that “testifies” “means the child takes the stand and describes the acts of sexual contact alleged in the hearsay.” Rohrich, 132 Wn.2d at 481.
Because only innocuous questions were asked of the child witness in Rohrich, we concluded that the opportunity to *163cross-examine was effectively denied and the Confrontation Clause was, thus, violated. By that same line of reasoning, testimony of an alleged child victim that simply amounts to a denial of the charged abuse is not testimony describing the charged act or acts of sexual conduct.
While the majority readily acknowledges our decision in Rohrich, it concludes that the admission of hearsay statements does not violate the Confrontation Clause “if the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination.” Majority op. at 159. In my view, the majority’s holding offends the true purpose of the Sixth Amendment Confrontation Clause, which provides “[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” U.S. Const, amend. VI. At its core, the Confrontation Clause, like the hearsay rules, represents a preference for live testimony. White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992). Such live testimony maximizes “the accuracy of the truth-determining process in criminal trials.” Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).5 “An indispensable component of the Confrontation Clause’s preference for live testimony is cross-examination because of its central role in ascertaining the truth.” Rohrich, 132 Wn.2d at 477-78; see also California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). It requires the State to elicit the damaging testimony from the witness so the defendant may cross-examine if he so chooses. Shaw v. Collins, 5 F.3d 128, 132 n.7 (5th Cir. 1993).
Here, the defendant was not provided the full op*164portunity to cross-examine the child victim because the State failed to “elicit the damaging testimony” from the child. The opportunity to cross-examine a witness, to test the witness’s perception, memory and credibility, is the fundamental purpose of the constitutional right of confrontation. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Parris, 98 Wn.2d 140, 144, 654 P.2d 77 (1982). That right would be a hollow one, indeed, if prosecutors are permitted to limit the complaining witness’s testimony to wholly innocuous details or recantation of earlier statements, then procure a conviction based on out-of-court statements untested through cross-examination. Rohrich, 82 Wn. App. at 678; see also Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968). “Confrontation means more than being allowed to confront the witness physically.” Davis, 415 U.S. at 315.
Although the child victim here did concede at trial that she had made statements to others that implicated the defendant, she did not testify at trial as to the specific acts of sexual activity that formed the basis of the charge against the defendant. The child merely acknowledged making the prior statements and indicated that they were untrue. Such testimony is not a description of the alleged sexual contact any more than telling the jury the name of her cat. Furthermore, the defendant could hardly cross-examine the child victim about the specific details of the acts that the defendant is alleged to have committed, when she did not testify to the acts. While counsel for the defendant could have questioned her about her earlier contradictory statements, that puts the defendant in the “catch-22” situation we envisioned in Rohrich when we said:
[B]y limiting the child’s ‘testimony’ to incidental or irrelevant details, or by not calling the child victim as a witness, the prosecutor forces the defendant into a no-win situation. The defendant must attempt a cross-examination bearing no resemblance to and far exceeding the scope of the direct examination, or call the child as his own witness, or waive his right of *165confrontation. The prosecutor’s tactic defeats the constitutional protection incorporated in the child victim hearsay exception and eviscerates the statutory requirement that corroborative evidence be produced when the defendant does not have the opportunity for full and effective cross-examination of the complaining child.
Rohrich, 82 Wn. App. at 677 (emphasis added; footnote omitted).
The majority cites United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988) and California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) to support its holding that the Confrontation Clause was not violated in this case. In my view, these cases fail to support the majority’s holding. Neither Owens nor Green involved the introduction of child hearsay statements. Moreover, each of those cases explicitly mandates that the defendant must have a full and fair opportunity to effectively cross-examine the hearsay declarant. Owens, 484 U.S. at 558-59; Green, 399 U.S. at 158. As I have previously indicated, Clark was deprived of such an opportunity.
In sum, unless the child victim testifies about the acts alleged, any hearsay statements of the child should not be admitted, absent corroboration. Here, the child did not testify about the acts alleged. Thus, the admission of the statements was error. I, therefore, dissent.
Johnson, J., concurs with Alexander, J.
See also Dana D. Anderson, Assessing the Reliability of Child Testimony in Sexual Abuse Cases, 69 S. Cal. L. Rev. 2117, 2123 (1996) (“The American trial system is premised on the assumption that optimal fact-finding will occur when the court hears live testimony from each witness, watches the cross-examination of each witness, and sees for itself each witness’ demeanor, sincerity, and memory of alleged events. Thereby, the court and the jury can assess whether the evidence offered by the witness is credible and avoid the obvious reliability risks in admitting any out-of-court declaration to prove a case.”) (footnotes omitted).