(dissenting) — Both the plurality and concurrence properly cross the necessary threshold to reach the merits of Vincent Grasso’s personal restraint petition, holding this collateral attack is not time barred by RCW 10.73.090(1) because State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997), was a significant change in the law from State v. Borland, 57 Wn. App. 7, 786 P.2d 810 (1990), thereby excusing the one year statute of limitations. See plurality at 11-13; RCW 10.73.100(6).
*26The concurrence, however, elects to view RCW 9A.44.120 in isolation from the confrontation clause,13 stating Rohrich was decided solely on statutory grounds, thereby opining the petitioner must prove more than actual and substantial prejudice but also a fundamental defect which inherently results in a complete miscarriage of justice. See concurrence at 22-24. The plurality is correct when it views this as a constitutional violation because, contrary to what the concurrence opines, RCW 9A.44.120 was drafted and must be construed in light of confrontation requirements. Rohrich, 132 Wn.2d at 476. RCW 9A.44.120 provides the exact protection required by the confrontation clause—no more, no less. See id. Thus, Rohrich was also a decision grounded in the confrontation clause as well as RCW 9A.44.120. As the plurality correctly recognizes, “[U]nder Borland R.G. testified, but under Rohrich she did not.” Plurality at 12. Because Rohrich was a significant change in the law on confrontation grounds as well as statutory grounds, Grasso’s personal restraint petition must be considered under the actual and substantial prejudice standard. However, I would argue not only was there “actual and substantial prejudice” but that excusing the key prosecution witness from answering questions necessary to establish prima facie admissibility of otherwise inadmissible hearsay is indeed a “ ‘fundamental defect which inherently results in a complete miscarriage of justice’ ” as the damning hearsay would have been rendered inadmissible. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867, 50 P.3d 618 (2002) (quoting In re Pers. Restraint of Fleming, 129 Wn.2d 529, 532, 919 P.2d 66 (1996)). That Grasso stipulated some of it was “reliable” does not relieve the prosecution of its confrontation clause burden to require the available child witness to “testify,” which she did not.
The primary issue then, and the point where I part company with the plurality, is whether a hearsay declarant “testifies” for the purpose of the confrontation clause when *27she is invited to respond to relevant questions by simply stating: “I don’t want to talk about it.” 5 Verbatim Report of Proceedings (VRP) at 630. I posit she does not.
My analysis is guided by two previous decisions from this court: Rohrich, 132 Wn.2d 472, and State v. Clark, 139 Wn.2d 152, 985 P.2d 377 (1999). Both cases involved child hearsay.
In Rohrich the prosecutor asked only irrelevant and innocuous questions on direct, none of which concerned the alleged sexual molestation or hearsay statements. Rohrich, 132 Wn.2d at 474. Defense counsel had an opportunity to cross-examine but did not do so. Id. We held the prosecutor’s failure to ask relevant questions violated the defendant’s right to confront witnesses against him and rendered hearsay statements from the declarant inadmissible. Id. at 481-82.
Unlike Rohrich, in Clark the child hearsay declarant was asked relevant questions on direct about the alleged event as well as the hearsay statement itself. Clark, 139 Wn.2d at 155. She answered these questions directly by denying molestation had occurred, and denying the truth of her alleged hearsay declarations. Id. Under those facts we found that the confrontation clause requirements had been satisfied, distinguishing Rohrich14 because “[t]he state did *28not seek to shield E. from difficult questions nor was she evasive in her answers.” Id. at 161. Relying on 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), we held the confrontation clause is satisfied only when “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.” Clark, 139 Wn.2d at 159. The confrontation clause standard set forth in Rohrich and Clark, however, was obviously not met in the case at bar. Here the prosecutor instructed R.G. at the beginning of direct she could avoid testifying by responding, “I don’t want to talk about it” whenever she felt like it. 5 VRP at 630. R.G. did just that when confronted with several questions pertinent to Grasso’s guilt or innocence. Id. at 633-36. This is precisely the fact distinguishing Clark from Rohrich: the prosecution’s attempt “to shield [the witness] from difficult questions.” Clark, 139 Wn.2d at 161.
Clark unequivocally requires the prosecution to ask the declarant “about the event and the hearsay statement.” Id. at 159 (emphasis added). The prosecution failed its burden on both grounds.
A. About the event.
R.G. evaded testimony with the “I don’t want to talk about it” response to questions directed at the core of the prosecution’s case. 5 VRP at 633-36. The end of the State’s direct examination is most illustrative:
Q Now, [R.G.], I want to ask you one more time, and if you don’t want to talk about it, just tell you me [sic]. You don’t want to talk about it?
A Okay.
*29Q There’s a lot of people that want to know what happened. I want you to tell us who it is was [sic] that touched you in a bad way.
A I don’t want to talk about it.
Q Okay. Fair enough. [R.G.], I don’t have any other questions. I’m done.
5 VRP at 639. Not only was the jury deprived the opportunity to hear the answer to that question, unquestionably relevant to establish Grasso’s guilt or innocence, but the failure to provide a responsive answer to a question about the event undeniably violates the confrontation clause. See Clark, 139 Wn.2d at 161. R.G. could very easily have given an exculpatory response, one which the jury had a right to hear and rely upon, much to the prejudice of the accused.
The plurality however elects to view R.G.’s testimony through a lens of make-believe as if the “I don’t want to talk about it” exchanges never happened. It cites two reasons for doing so: (1) the prosecutor gave R.G. the alternative of testifying she did not know or could not remember the answer to the question, and (2) R.G. never testified “I don’t want to talk about it” to any questions posed on cross-examination. Plurality at 16-17.
The plurality hinges its conclusion primarily on the second factor. Id. (“Most importantly, R.G. did not answer, T don’t want to talk about it’ to any of the questions posed on cross-examination.” (first emphasis added)). But Rohrich undercuts this rationale. There we held the confrontation clause’s indispensable component of cross-examination “requires the State to elicit the damaging testimony from the witness so the defendant may cross-examine if he so chooses.” Rohrich, 132 Wn.2d at 478 (emphasis added). Indeed, the defense in Rohrich elected not to cross-examine the State’s witness at all, yet we still found the prosecution’s failure to ask pertinent questions on direct violated the defendant’s rights under the confrontation clause. Id. at 474. Shifting the burden back to the defense to extract such damaging testimony puts the defendant in “ ‘a constitutionally impermissible Catch-22’ of calling the child for direct or *30waiving his confrontation rights,” id. at 478 (quoting Lowery v. Collins, 996 F.2d 770, 771-72 (5th Cir. 1993)). Therefore that R.G. never stated “I don’t want to talk about it” to a question on cross-examination has no bearing whatsoever on whether the prosecution properly conducted its direct examination.
The second reason the plurality employs to accept the remainder of R.G.’s testimony is the prosecution’s submitted alternatives that R.G. could respond by stating she did not know or could not remember the answer. Plurality at 16-17. The plurality states the prosecutor “was careful to clarify which response R.G. intended.” Id. Although I would characterize the questions as more leading than clarifying, even so, these purported alternatives certainly did not mitigate the error since the jury was deprived of hearing a substantive response in lieu of “I don’t want to talk about it.”
B. About the hearsay.
Not only must the prosecution pose direct and relevant questions about the event, but it must also pose direct and specific questions about the alleged hearsay declarations. Failure to pose these questions to the hearsay declarant renders the hearsay inadmissible. Clark, 139 Wn.2d at 159.
1. Jean Bourget
The plurality holds R.G. testified about her statements to Jean Bourget15 because R.G. “affirmed that she was telling the truth when she talked to Bourget.” Plurality at 17. But the actual colloquy was this:
Q Do you remember telling the doctor that your dad touched you in a bad way?
A I don’t want to talk about it.
*31Q When yon were talking to the doctor about your dad, were you telling her the truth, too?
A Yeah.
5 VHP at 636. This affirmation of truth came almost immediately after R.G. “d[idn’t] want to talk about” whether she “remember [ed] telling the doctor that [her] dad touched [her] in a bad way.” Id. The plurality excludes the exchange directed toward the contents of the hearsay statement but permits the exchange addressing the truthfulness of the excluded statement. Under this reasoning, a witness could properly testify about an event crucial to the prosecution’s case by simply stating she had a conversation with some of her friends but never specify what was said, much less what really happened. The prosecution would then admit the declarant’s hearsay through one of her friends, even though the declarant never testified at trial that the subject matter of the conversation addressed the event in question.
This is insufficient under Rohrich and Clark. Because Clark requires the declarant be “asked about.. . the hearsay statement,” 139 Wn.2d at 159, it necessarily follows that she be asked about the contents of that statement to afford the defendant a meaningful opportunity for cross-examination. Accord Rohrich, 132 Wn.2d at 478.16
The plurality argues this conclusion “need not be addressed” because “ T don’t remember,’ is a constitutionally valid response,” and “if R.G. does not remember the event, it may be inferred that she does not remember the content of the event.” Plurality at 17 n.8. To the contrary this conclusion must be addressed because the second prong of Clark requires the prosecutor to ask the declarant “about. . . the hearsay statement,” Clark, 139 Wn.2d at 159, and hearsay by nature refers to the contents of an out-of-court statement.
*32Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). The “statement” must be an assertion, whether oral, written, or nonverbal conduct. ER 801(a). The general inadmissibility of hearsay relates to the statement’s contents—not whether the statement was made.
State v. Collins, 76 Wn. App. 496, 886 P.2d 243 (1995), is instructive. There a detective answered several telephone calls at the defendant’s house; each caller had asked for “ ‘Larry.’ ” Collins, 76 Wn. App. at 497. The court upheld the admission of the detective’s testimony regarding the conversations because none of the hearsay was assertive. Id. at 498. Put simply, a witness can testify to whether he or she spoke with another person without violating the hearsay rule, but once the testimony leaks into the contents of the conversation, the hearsay rule generally proscribes admission, unless offered for a reason other than proving the truth of the matter asserted. See United States v. Williams, 133 F.3d 1048, 1052 (7th Cir. 1998) (admission of a declarant’s statements is permissible so long as the witness’s testimony is “limited to the fact that he spoke to [the declarant] without disclosing the substance of that conversation”). Applying the general rules surrounding hearsay testimony, to ask a declarant “about. . . the hearsay statement” as required by Clark requires questioning toward the contents of the statement—not whether the declarant ever spoke to another person.
The first question asked if R.G. remembered telling the doctor her dad touched her in a bad way. 5 VRP at 636. Although this was an appropriate question, the invited “I don’t want to talk about it” response nullified it. The second question to R.G. only referenced talking to the doctor. A question about whether the child declarant remembered speaking to someone is no more a question “about. . . the hearsay statement” than a question of what the weather was on the day the child witness was abused—without any reference to the abuse—is a question “about the event.” *33Clark, 139 Wn.2d at 159. As such, R.G. never testified about the contents of her statements to Bourget and the alleged hearsay statement to Bourget must accordingly be excluded.
2. Elaine Metz
The only reference to child interview specialist Elaine Metz during the entire examination (direct, cross, and redirect) went as follows:
Q Okay. Do you remember talking to a nice woman with black hair by the name of Elaine?
A I don’t remember.
Q Okay. Before you went to the doctor, did anyone ask you about your dad?
A No, I can’t remember.
5 VRP at 633. Nowhere in that entire two-question-two-answer colloquy is there any reference to the contents of R.G.’s alleged hearsay statement to Metz. The prosecutor never asked about the hearsay statement to Metz. Rather, the questions only go to R.G.’s and Metz’s purported relationship. R.G. never testified to the contents of her alleged statements to Metz. Consequently, that hearsay was inadmissible as well.
3. Kathy Keating-Harvey
The plurality correctly holds R.G. never testified for purposes of the confrontation clause about her incriminating hearsay statements to child therapist Kathy KeatingHarvey. Plurality at 18. However, the plurality concludes Keating-Harvey’s testimony was admissible under the medical hearsay exception, ER 803(a)(4), and therefore concludes Grasso suffered no prejudice. Plurality at 19-21. To support this bald conclusion the plurality cites State v. Butler, 53 Wn. App. 214, 766 P.2d 505 (1989). See plurality at 19. I disagree.
Butler held the defendant suffered no prejudice when the trial court improperly admitted a hearsay statement under *34the excited utterance exception, ER 803(a)(2), because the statement was independently admissible under the medical diagnosis exception, ER 803(a)(4). Butler, 53 Wn. App. at 217, 219. Butler may have addressed hearsay, but it did not involve a confrontation clause violation. This case does. To analyze the prejudice prong under Butler is to treat the confrontation clause as a codification of the hearsay rule, an approach squarely rejected by the United States Supreme Court. Green, 399 U.S. at 155-56; see also Dutton v. Evans, 400 U.S. 74, 86, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (plurality opinion of Stewart, J.).
The plurality, however, concludes this analysis is appropriate because the United States Supreme Court held the medical diagnosis exception is “firmly rooted.” Plurality at 19 (quoting White v. Illinois, 502 U.S. 346, 357, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992)). The Court in White so held because a patient’s out-of-court declarations to his or her medical care professional “provide substantial guarantees of their trustworthiness,” White, 502 U.S. at 355.
However, “in the context of child hearsay, ER 803(a)(4) is not a firmly rooted hearsay exception.” State v. Florczak, 76 Wn. App. 55, 68, 882 P.2d 199 (1994); see also State v. Kilgore, 107 Wn. App. 160, 183, 26 P.3d 308 (2001) (“The medical diagnosis exception is normally a firmly rooted exception, but this is not true for statements by very young children under the alternative test in Florczak”), aff'd, 147 Wn.2d 288, 53 P.3d 974 (2002). The court in Florczak recognized that it has only been in the last 15 years that the medical diagnosis exception has “extended in this state to include out-of-court statements to health care professionals from children too young to comprehend the purpose of the statements.” Florczak, 76 Wn. App. at 69. Conversely, traditional medical diagnosis hearsay is firmly rooted because it dates back for more than two centuries. White, 502 U.S. at 356 n.8. Thus, child hearsay, even if made to a medical professional, does not bear the sufficient indicia of reliability to satisfy the confrontation clause’s reliability requirement. Accord Rohrich, 132 Wn.2d at 480 (“[N]othing about child hearsay indicates the hearsay state*35ment would be more reliable than an in-court declaration of the same accusation.”). The child declarant must therefore testify in order to admit the out-of-court statements. Id. at 481.
While Washington’s child hearsay statute, RCW 9A.44.120, may provide more protection than the confrontation clause, it certainly does not provide less. Accord Clark, 139 Wn.2d at 157. Moreover, aside from the hearsay, R.G.’s substantive testimony may have exculpated the defendant had she been responsive.
As R.G. did not testify for purposes of the confrontation clause, Grasso suffered the same actual and substantial prejudice as did the defendant in Rohrich.
CONCLUSION
Though the plurality holds the prosecutor’s instruction to withhold relevant testimony was improper, it denies a remedy to the accused. The initial refusal to answer precludes the fact finder from learning what she would have said if she had answered. The plurality even concedes R.G. did not testify within the meaning of RCW 9A.44.120(2)(a) and the confrontation clause as construed in Rohrich. See plurality at 12 (“[Ujnder Borland R.G. testified, but under Rohrich she did not.” (emphasis added)). The plurality also concedes R.G. must either testify or her hearsay statements are inadmissible. See plurality at 8. Yet in a strange turn of events the plurality recants its previous statement and asserts R.G. did in fact testify sufficiently for the court to admit the hearsay. Plurality at 17-18. Obviously she did not.
I dissent.
Alexander, C.J., and Johnson and Chambers, JJ., concur with Sanders, J.
“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Const, amend. VI.
The plurality suggests that Clark “limited” our holding in Rohrich. See plurality at 12 n.3. Clark did not limit Rohrich at all but rather distinguished the case on its facts:
But the facts of Rohrich must be distinguished from the present case. Although in Rohrich the preference for live testimony had been thwarted by not asking the child witness about the alleged occurrence or the hearsay statement, in the present case the preference for live testimony prevailed through direct examination on both points. In Rohrich the state avoided questioning the child witness about the alleged acts, thus directly preventing the defendant from cross-examining her. However in the present case there was no such evasion: The state asked E. about the alleged acts and she answered by denying they occurred. The state also asked E. about her prior hearsay statements which she acknowledged making but claimed were lies. Far from being placed in a constitutionally impermissible Catch-22 of calling the child for direct or waiving his confrontation rights, Clark had a full opportunity to cross-examine E. about the alleged acts and about her hearsay statements. The state did not seek to shield E. from difficult questions nor was she evasive in her answers. Indeed, while Clark may view conviction notwith*28standing E.’s clear testimony that her hearsay statements were lies as a miscarriage of justice, it is nevertheless not a violation of the confrontation clause.
Clark, 139 Wn.2d at 161. Contrary to the plurality’s suggestion, we did not cut short Rohrich anywhere in that paragraph.
The plurality states R.G. referred to Jean Bourget as a doctor, even though her occupation was a pediatric nurse practitioner. Plurality at 9 n.2. Presumably, the plurality refers to the fact that Dr. Carol Baer, M.D., had never met R.G., 5 VRP at 771, and that R.G. answered affirmatively that she “remember[ed] the doctor taking a look at” her, id. at 633.
The plurality criticizes this view because one could infer R.G. simply did not remember anything about the interviews with Bourget or Elaine Metz. See plurality at 17 nn.8, 10. But that is no reason not to ask.