specially concurring in part and dissenting in part:
The bizarre, sordid, and discordant interrelationships between two families reflect animosity and numerous claims of incest, physical abuse of M.W. by the child’s natural father, as well as the physical abuse of M.W.’s mother by her natural father and raise issues relating to the credibility of many witnesses. The factual issues relating to the sexual abuse of a three-year-old child by her stepfather were resolved by the jury. The primary issue is whether a proper foundation was laid for the admission of the three-year-old victim’s statements to those investigating the charges. On appeal a number of issues that have grave constitutional implications have been raised which require a remand to the trial court for further factual determinations and possibly a new trial. Although I agree with nearly all of the analysis in the majority opinion, the record does not establish that M.W. was unavailable, either under section 13-25-129, 6A C.R.S. (1987), or the sixth amendment. The test set forth in the majority opinion for admissibility of hearsay statements relating to the sexual abuse of M.W. is not the same test that was applied by the trial judge. Accordingly, a further hearing is required to determine whether the hearsay evidence was admissible under the test announced by the majority and for a new trial if the evidence does not meet the statutory standard in the majority opinion.
The majority correctly concludes that the two-prong analysis of Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), and People v. Dement, 661 P.2d 675, 680 (Colo.1983), is still required before hearsay, which does not come within a “firmly rooted” exception, may be admitted against the defendant in a criminal prosecution.1 Thus, the Confrontation Clause mandates that the hearsay declarant be unavailable, and that the statement possess “sufficient indicia of reliability.” Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct. at 2539; People v. Dement, 661 P.2d at 681.
For purposes of analysis, I will assume, as does the majority, that unavailability under the sixth amendment is coextensive with unavailability under section 13-25-129.2 Some courts which have considered *757the sixth amendment question as it pertains to the out-of-court statements or testimony of child victims of sexual abuse after Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), have concluded that there must be a particularized and individualized finding of a significant risk of substantial or severe psychological or emotional harm to the child before the statements or testimony may be admitted. Perez v. State, 536 So.2d 206 (Fla.1988); State v. Chisholm, 245 Kan. 145, 777 P.2d 753 (1989) (apparently backing away from the even more stringent requirements of State v. Eaton, 244 Kan. 370, 769 P.2d 1157 (1989)); State v. Twist, 528 A.2d 1250 (Me.1987). The majority holds that “ ‘unavailability,’ both within the meaning of section 13-25-129, and of the constitutional requirement as established by Ohio v. Roberts, can be met when the court makes a particularized finding that the child’s emotional or psychological health would be substantially impaired if she were forced to testify and that such impairment will be long standing rather than transitory in nature.” Maj. op. at 749-750.
Other courts have an even stronger requirement that the mental or emotional trauma render the child unable to communicate to the jury before he or she is “unavailable.” State v. Vincent, 159 Ariz. 418, 768 P.2d 150 (1989); Craig v. State, 316 Md. 551, 560 A.2d 1120 (1989); State v. Taylor, 562 A.2d 445 (R.I.1989). Even assuming that the risk of severe psychological or emotional harm is sufficient to show unavailability under the Confrontation Clause and section 13-25-129, I do not believe such a showing was made here. The guardian ad litem of the child, who was an attorney and not a psychiatrist or psychologist and had talked to M.W. for a total of about thirty minutes before the hearing on unavailability was held, testified that “it would be detrimental to [M.W.] if this situation is constantly made important in her life,” and “it is my recommendation that [M.W.] not be here to testify.”
The only other witness upon whom the trial court relied to find M.W. unavailable to testify was Dr. Susan VanScoyk. She stated that the impact of testifying in a courtroom setting could be “very traumatic” for M.W.:
Q [By the prosecutor]. Could you tell us, in your opinion, what impact [the courtroom setting] alone would have on someone like M.W. and on her?
A [Dr. Van Scoyk]. Well, I think for a child her age in general, and especially children who have been through some traumatic event and who have already been through several interviews with regards to that, it can be even — it can accentuate the trauma in a way; and that is that children this age tend to feel responsible for things to begin with.
And especially for children who have been through situations where they’ve been taken from the home, placed in other homes, they begin to feel as if they’ve done things very wrong to have this all come about.
And I think just the fact, again, of accentuating the event, of sitting here in front of people who she has — has been attached to currently, in the past, it would be very complicated and very traumatic for her.
Q. What mental or physical harm could come to her if she was forced to appear and asked the same questions that you asked her back in February, in front of all these strangers, except for the defendant?
A. Well, I think, number one, again, it is the fact that I think children tend to relive the event, especially — well, clearly traumatic events in the retelling. So I think, number one, it would be a retrau-matization of [M.W.] in this setting.
Number two, children who have been in abusive situations in general tend to find it very difficult to speak out against people whom they have been dependent upon, and, also, who they love in some ways, too; and that would be a second problem, I think, for [M.W.].
Q. Would it be possible that if she was sitting where you are right now, she would become, as you indicated, immobilized or freeze ?
A. I think it’s very possible.
*758Q. As a doctor and as a child psychiatrist, you believe it is in [M.W.’s] best interest to not come here and be forced to testify?
A. No. I don’t think it’s in her best interest.
Q. Do you think that it could — well, you heard my opening remarks to the judge about soldiers from Vietnani reliving. Can [M.W.] — can that happen to her, too?
A. It can, yes.
Q. And what would happen if she had to go through that?
A. Well, I think children her age, and especially for [M.W.], they are even at more a disadvantage than adults having been through traumatic events in that they don’t have the ability to really put it in perspective. It, again, is totally overwhelming for them; as with an adult, you would be a little bit more well equipped to handle it, put it in perspective and deal with it.
Q. Could this affect her for years to come if she was forced to come here? A. Yes, it could.
Q. And if she was in any kind of treatment mode at this time — which I don’t believe she is — I mean professional treatment, would this set her back and cause a more intensive hands-on type treatment for her?
A. Yes, it could.
(Emphasis added.) After hearing this testimony, the trial judge ruled that “the child will not testify, and accordingly, is medically determined to be unavailable since the possible harm to the child in doing so [sic].”
The trial judge did not find that the child would suffer severe psychological or emotional harm if forced to testify; nor, on the evidence presented at the hearing, would he have been justified in doing so. On the other hand, at the time the hearing was conducted, the trial judge did not have the benefit of the opinion issued on this appeal. I would, therefore, remand the case for the limited purpose of determining whether M.W. was unavailable to testify because of an inability to communicate with the jury because of psychological or emotional trauma, or because she would be exposed to a significant risk of severe emotional or psychological harm.3
I cannot agree with the majority, however, that the statements to Sandberg were properly admitted under section 13-25-129. We have just recently held that failure to give the cautionary instruction of subsection 13-25-129(2) both contemporaneously with the introduction of the hearsay and in the court’s general charge is reversible error. State v. McClure, 779 P.2d 864, 866-67 (Colo.1989). No such instruction was given with respect to Sandberg’s testimony, either contemporaneously or in the general charge. This , is not surprising since, as the majority notes, M.W.’s statements to Sandberg were admitted under C.R.E. 803(24), not section 13-25-129. Analysis under the plain error standard is accordingly inappropriate. If, as the majority holds, C.R.E. 803(24) is no longer available as an exception to the rule against hearsay if *759section 13-25-129 applies, it is unclear how Sandberg’s testimony could have been admitted. .
In addition, section 13-25-129 does not apply to the statements made to Sandberg because of the lack of corroboration. The statement given by M.W. to Sandberg indicated that penetration occurred, yet Sand-berg himself testified that he did not believe there was penetration and thus he did not recommend that M.W. be physically examined.
I would therefore remand this case for the limited purpose of determining if M.W. was “unavailable” at the time of trial under the sixth amendment and section 13-25-129. The trial court should hold a hearing at which testimony relevant to this issue can be received. If, after hearing both sides, the trial court concludes that M.W. was unavailable at the time of trial under the standard announced today, a new trial is not required. If, however, that standard cannot be met, a new trial should be granted.
Sexual abuse of children is an extremely serious problem and offense, and when it is proven to have occurred it should be dealt with appropriately, which in the normal case calls for severe punishment. However, our distaste for the offense cannot and should not result in an exception to protections afforded by the Constitution, especially where, as here, a conviction is obtained entirely on hearsay evidence. Although a number of witnesses testified for the prosecution, they were allegedly reporting the statements of a three-year-old child, M.W. It is especially important to scrupulously observe the requirements of the sixth amendment and the rule against hearsay when the sole evidence supporting the defendant’s conviction is hearsay testimony consisting of a number of somewhat different versions of what M.W. said happened when she was with her stepfather. Efficient prosecution of such cases can be accomplished within the context and constraints of the Constitution. Accordingly, I concur in part and dissent in part to the majority opinion, and would remand for further proceedings by the trial court.
. The statements made by M.W. to Dr. Van-Scoyk and Investigator Sandberg were admitted pursuant to section’ 13-25-129 and C.R.E. 803(24), respectively, neither of which can be considered "firmly rooted" exceptions to the rule against hearsay. It is unnecessary, therefore, to decide to what extent the Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, analysis is still constitutionally required when the hearsay comes in through a "firmly rooted" exception. See Bourjaily v. United States, 483 U.S. 171, 184, 107 S.Ct. 2775, 2783, 97 L.Ed.2d 144 (1987); United States v. Inadi, 475 U.S. 387, 401, 106 S.Ct. 1121, 1129, 89 L.Ed.2d 390 (1986).
. There is a strong argument, however, that "unavailability” under section 13-25-129 is stricter than under the Confrontation Clause. The phrase in section 13-25-129, "unavailable as a witness,” is the same language used in C.R.B. 804(a). During the same session of the General Assembly that enacted section 13-25-129, section 18-3-413, 8B C.R.S. (1986), providing for videotape depositions of child victims of sexual offenses, was enacted. Section 18-3-413 allows for the introduction into evidence of the videotape depositions if “the victim is likely to be medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence.” (Emphasis added.) Thus, the General Assembly specifically included "medically unavailable” in section 18-3-413, but not in section 13-25-129. We have recently held that section 13-25-129 must be strictly construed in favor of the defendant. People v. McClure, 779 P.2d 864, 866 (Colo.1989).
. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, requires sufficient indicia of reliability where, as here, the statement is not admitted pursuant to a "firmly rooted" exception to the rule against hearsay. Section 13-25-129 also requires corroboration if the declarant does not testify at trial. I agree with the majority that M.W.’s statements to Dr. VanScoyk have sufficient indicia of reliability to be admitted, but I would do so on a case-by-case basis, and would eschew, and disapprove of, the approach taken by the majority in taking judicial notice of the reliability of statements by young child victims of alleged sexual abuse. Such an approach does violence to the Confrontation Clause in the sixth amendment and is not consistent with a majority of the case law. See United States v. Marchini, 797 F.2d 759, 764 (9th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1288, 94 L.Ed.2d 145 (1987); United States v. Barlow, 693 F.2d 954, 964 (6th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983); see also Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 564 n. 212 (1988). In addition, I also recognize that the corroboration requirement can be met, at least in part, by the nonassertive conduct of the child during the interview when the statements are made. See State v. Jones, 112 Wash.2d 488, 497, 772 P.2d 496, 501 (1989). The apparent lack of physical evidence is somewhat troubling but is not inconsistent with the statements made by M.W., at least to Dr. Van-Scoyk.